Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri

PETITIONER: Marcus
RESPONDENT: Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri
LOCATION: United States District Court for the Eastern District of New York

DOCKET NO.: 225
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 367 US 717 (1961)
ARGUED: Mar 30, 1961
DECIDED: Jun 19, 1961

Facts of the case

Question

Media for Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri

Audio Transcription for Oral Argument - March 30, 1961 in Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri

Earl Warren:

Number 225, William Marcus et al., Appellants, versus Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri, et al.

Mr. Glazer.

Sidney M. Glazer:

May it please the Court.

This case is an appeal from a decision of the -- of Missouri Supreme Court.

And it presents the questions of the -- literally of this Missouri scheme for dealing with the seizure of alleged obscene material raising the question whether the Missouri statutes, in allowing the seizure of alleged obscene material prior to any judicial determination, that the material is in fact obscene, whether or not that constitutes a violation of the freedom of speech and press clauses of the Federal Constitution and whether the application of the Missouri statutes by allowing police officers to go forth under a general warrant authorizing them to go to six distributors of publications and seize all obscene matter, and to describe as all obscene matter, whether that also is an unconstitutional violation of the freedom of speech and press clause.

The other question presented is whether or not the publications condemned in this particular case or ever condemned by a constitutional test of obscenity.

Now, this Court has noted -- has postponed the jurisdictional question to the hearing on the merits.

And the first -- I shall first get into the statutory scheme and then the particular facts to this case and then discuss the jurisdictional question.

The statutes involved, they are set forth on page 35 of appellants' brief.

Section 542.380 of the Missouri statutes provide that upon a complaint under oath by -- in writing an essence to a judge that certain scribed property is being kept that the judge, if he finds reasonable grounds, may issue a search warrant for the described property.

And then, the Section further provides, at paragraph (1) that ceratin gambling paraphernalia might be seized, we're not concern with that.

And in paragraph (2), which is set out on page 36, it provides that obscene articles which were kept for the purposes of sale distribution or circulation may be seized.

Then in paragraph (3), another part, we're not concern with here, it deals with contraceptive devices.

In paragraph (4), which has an incidental bearing on the case, it -- it allows not only the seizure of say obscene material but any material used to manufacture say this -- any alleged obscene material.

The other provisions of the statutes provide that the warrant shall describe the articles to be seized and that the person from whom the article is seized shall have notice, that the officer who seizes the material shall retain in his possession until after a hearing and that the judge issuing a warrant shall hold a hearing to determine whether or not these items should be seized.

Now, in addition -- now and then finally if, after a hearing, these items are found to be obscene, their destruction may be ordered or they may be held for purposes of criminal prosecution and then the destruction ordered.

Potter Stewart:

Under subparagraph (4), I suppose a printing press could be seized at the State.

Sidney M. Glazer:

Yes, Your Honor.

I think that's broad enough to include a printing press if it was manufacturing alleged obscene material.

Now, in addition to the statutory scheme, the Missouri Supreme Court has promulgated rules under the Missouri Constitution.

It has that right providing the rules only deal works as procedure.

Now, it has promulgated Rule 33, and it's -- which is set out on page 38 of the appellants' brief.

Under this rule, it set -- it sets forth requirements of a complaint for a search warrant.

And it says that a -- such a complaint may issue if -- if there is, in certain premises, personal property, if -- whose seizure is authorized by statute.

And it provides two conditions under which such a complaint may issue.

Number one, if the complaint is verified under oath and it states fact positively and not upon information and belief, the judge must issue a search warrant.

However, if it states evidential facts, then the judge must find probable cause.

Now, in the -- in this particular case, the facts are these.

It goes back to 1957.

And on October the 8th, 1957, a police officer went to the wholesale distributor, and he spoke to the wholesale distributor and apparently must have looked over what the wholesale distributor, what sort of magazines this distributor was -- was distributing this entire stock.