New York v. P. J. Video, Inc.

PETITIONER:New York
RESPONDENT:P. J. Video, Inc. et al.
LOCATION:Network Video

DOCKET NO.: 85-363
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: New York Court of Appeals

CITATION: 475 US 868 (1986)
ARGUED: Mar 04, 1986
DECIDED: Apr 22, 1986

ADVOCATES:
John J. DeFranks – on behalf of the petitioner
Paul John Cambara, Jr. – on behalf of the respondent
Paul John Cambria, Jr. – on behalf of the respondent

Facts of the case

Investigator David Groblewski from the Erie County District Attorney’s Office viewed videos rented from P.J. Video and determined their content violated New York obscenity statutes. He drafted an affidavit describing the content on the videos and filed a warrant authorizing their seizure. A village justice in Depew NY issued the warrant and the police seized ten movies suspected to contain obscene content. A local court determined five of the movies violated obscenity standards. P.J. Video argued that the justice issued the warrant without probable cause since he did not personally view the movies. The court agreed and suppressed the videos as evidence. The County Court of Erie County affirmed the decision, and the New York Court of Appeals also affirmed. It asserted that warrants authorizing the seizure of items that were both non-dangerous and mediums of speech needed to satisfy a higher level of proof of “probable-cause” than other types of warrants because of First Amendment concerns.

Question

If a warrant is issued for the seizure of items that can be considered as mediums of speech, does the First Amendment require this warrant to satisfy a “higher” level of proof for probable-cause than warrants issued for other forms of evidence?

Warren E. Burger:

Mr. DeFranks, I think you may proceed whenever you are ready.

John J. DeFranks:

Mr. Chief Justice, and may it please the Court:

The present case on a writ of certiorari to the New York Court of Appeals involves the warrant seizure of 13 videocassette recordings including eight titles alleged to be obscene under New York’s obscenity law.

The issue as we see it, before this Court, is twofold: firstly, whether the New York Court of Appeals has elevated the standard of proof necessary to support the evidentiary seizure of presumptively protected material, and secondly, whether the Constitution of the United States requires such an elevation in light of the circumstances of the present case and the available First Amendment safeguards.

Now, although it is here disputed, I think the record provides firm support for our contention that the standard has in fact been elevated.

In the words of the majority, there must be enough proof before the Magistrate to allow him to judge the obscenity of the films and to determine that they are not entitled to constitutional protection.

Warren E. Burger:

And you think that’s the function of the jury in the trial of the case?

John J. DeFranks:

Yes, sir.

It was mere than imprecise language on the part of the Court of Appeals, and this is clear upon reading the dissent.

In the third paragraph of the dissenting opinions he points out to the majority that they have required an unambiguous demonstration of obscenity in order to support the present seizure.

He advised them that the standard has been universally rejected by the courts of the United States.

The majority responds in footnote 3, not to deny the elevated standard but in essence to confirm it, chiding the dissent for not having provided any case authority for his claim of universal rejection.

The dissenter took four more opportunities to point out to the majority that they have elevated the standard of proof.

All four references were ignored.

They certainly were not denied.

John Paul Stevens:

Mr. DeFrank, do we have, to read the dissent to understand the majority opinion, do you think?

John J. DeFranks:

No, I don’t believe you have to, but the dissent makes it very clear.

The majority speaks for itself on the unequivocal standard where they say, we look at this information and we can see it being inculpatory, or another interpretation where it may be less inculpatory.

So, the majority makes clear what they are doing.

In its legal analysis the Court of Appeals committed a fatal flaw which probably resulted in the elevated standard.

They relied upon the scrupulous exactitude requirement of Stanford to raise the standard of proof, yet in this case the Magistrate made the probable… cause determination.

He designated only certain films for seizure, and only those films were taken.

Further, the term “scrupulous exactitude” seems to be contradictory to the term “probable cause”.

How can we ever be exact about what supposedly is Appeals probable, and that was the question the Court of was determining.

More importantly, the Court of Appeals aired in applying a prior restraint analysis to this case.

No prior restraint was demonstrated.

No substantial restraint was demonstrated.

And in fact, the record indicates that there ware available safeguards to prevent any type of substantial restraint.

William H. Rehnquist:

When you’re talking about substantial restraint, Mr. DeFranks, you’re talking about seizing of all the copies of a magazine or something like that?

John J. DeFranks:

Or even one, if it’s the only offering of a movie theater, I would suggest, that might–

John J. DeFranks:

–well be a substantial restraint, if it’s not replaceable.

Sandra Day O’Connor:

There’s some suggestion in respondent’s brief, that could have been the case here, that this was the only copy or something?

John J. DeFranks:

Indeed, 85 days after the seizure there was an assertion that, “these were our only copies”.

There was no demonstration, though, that they couldn’t have been replaced, that others could not have been made available through the distributor.

These videocassettes are mass production items.

They come in mass produced boxes with descriptions and pictures on the outside.

It’s clear they’re not unique.

We are not talking about a first-run film, in this particular case.

It’s important to note that no injunction or order against further dissemination was ever contemplated, nor was an order of destruction ever contemplated in this case.

Sandra Day O’Connor:

Well, what… the circumstances here, it’s a business that rents out videotapes?

John J. DeFranks:

Yes, Your Honor.

Sandra Day O’Connor:

And if the State ware to seize under the warrant, in fact the only copy of the videotape in such a business for a particular film, is there an obligation on the part of the State to provide hearing?

John J. DeFranks:

There’s an obligation not only to provide a hearing, adversarial under Heller, but there’s an obligation to allow him to copy it.

If the copying process is not good enough, we must return to him the original.

Sandra Day O’Connor:

Well, does the State have to offer that in the first instance and find out whether that’s the case, or not?

John J. DeFranks:

It was determined under Heller that there need not be a pre-seizure adversarial hearing.

I believe it was also determined in Helller that he’s entitled to a post-seizure adversarial hearing upon his request.

Sandra Day O’Connor:

So, the burden is on the business owner to request it?

John J. DeFranks:

Yes.

Sandra Day O’Connor:

Which was not done?

John J. DeFranks:

Was not done, and I submit the burden–

Byron R. White:

If it had been done, copies would have been made?

John J. DeFranks:

–Copies would have been made, of course.

Copies would have been made.

Byron R. White:

If he wanted them?

John J. DeFranks:

In preparation for trial he requested, 30 days after the seizure, inspection and/or copying to prepare for trial.

It had nothing whatsoever to do with continued dissemination.

Of course, it came some time after the seizure.

We responded by saying, what you want, if you want inspection you’re welcome to come and inspect it any time you want.

But he never, upon our response, said,

John J. DeFranks:

“Well, I have to have copies to disseminate, to provide the public with access to these materials. “

So, we submit that under Heller he has not demonstrated a substantial restraint.

Byron R. White:

If there was only one copy in the first place, I suppose all you’re obligated to do is to get that back to him.

You make a copy for yourself and give them one copy back?

John J. DeFranks:

That’s indeed what Heller says, and we would have been compelled to do so.

Sandra Day O’Connor:

Mr. DeFranks, you think that in… for a warrant to be proper that there has to be established probable cause, that every element of the crime has been committed, or something less than that?

John J. DeFranks:

For the warrant to be sufficient, I would contend that the affiant should indicate that he’s reviewed the entire film.

He should attempt to describe–

Sandra Day O’Connor:

Just answer the question, please.

Does every element of the crime have to be supported by probable cause?

John J. DeFranks:

–At least an inference.

You should be able to draw from the evidence an inference as to each element, the three-prong test.

Sandra Day O’Connor:

And I Guess the argument here focuses on whether in fact all the elements of this offense have been met?

John J. DeFranks:

Yes, and I would submit that they have.

Sandra Day O’Connor:

By inference?

John J. DeFranks:

By inference, yes.

With respect to the safeguards, I did want to point out one more safeguard because it goes to the question of whether or not something material might have been left out of this film.

It was the focus of the Court of Appeals’ decision and the focus of my opponent below, at least with regard to one of his arguments, that perhaps one of the elements had not been proved by the affidavit.

Perhaps it could not even infer… something, what they were suggesting was something–

Byron R. White:

By the way, can you help me find the affidavit?

John J. DeFranks:

–Yes.

The affidavits were talking about are in the… attached to the dissenting opinion of the Court of Appeals.

They would be at 825.

Byron R. White:

Thank you.

John J. DeFranks:

As I was saying, the focus of the Court of Appeals was that something might have been left out in this case.

We would submit that this Court’s decision in Franks versus Delaware operates as the perfect safeguard for that type of complaint, because under Franks he could have demonstrated that something material had been left out, relative to one of the elements of the crime.

It would have forced a viewing of the film, based upon his contention that there was a reckless disregard for the truth.

It’s interesting, in New York we have three reviewing courts concerned with this case.

No court, up to this point, has ever seen the materials that are the subject of this petition.

We submit that nothing in this case justifies the elevated standard required by the Court of Appeals.

John J. DeFranks:

There was no prior restraint.

There was no substantial restraint.

There was no mass seizure as is contended.

There was not even a violation of anyone’s privacy interest.

We submit that in light of those factors, probable cause should be the standard, probable obscenity, and we contend that the affidavits in this case demonstrate probable obscenity as to the three prongs of the Miller test.

First, the affidavits are introduced by the statement,

“The following describes the content and character of the films. “

All the films are denominated as adult films, indicative of their strong sexual content.

From eight to 15 sexual acts found offensive by any constitutional standard by the New York Court of Appeals are described in these affidavits.

The Court of Appeals had no problem with respect to the second prong of the Miller test.

Common sense indicates that where there are so many acts performed in the course of a film, and that these arts must consume a substantial period of time, the film must have as its predominant appeal the prurient interest in sex.

Byron R. White:

Well, the affidavits purport to describe each scene in succession.

John J. DeFranks:

Yes, they do, but there are affidavits we are concerned with which do not go in succession either.

At one point the affiant says, another scene rather than the following scene, et cetera, Your Honor.

These films… these affidavits, excuse me, give not a single clue as to any redeeming literary, artistic, political or scientific value, and indeed none could be expected based on the predominance of the sexual activity in the affidavits.

Sandra Day O’Connor:

Mr. DeFranks, assume for a moment that the warrant was not supported by probable cause here.

Is it clear from the record that the officers acted in good faith in executing the warrant?

John J. DeFranks:

Yes, it is.

Sandra Day O’Connor:

Do you think then that, under the Leon case, that the material could be seized in any event?

John J. DeFranks:

I would think that under Leon this warrant and seizure would be upheld.

My problem is that the New York Court of Appeals has rejected the good faith exception to the warrant requirement.

Thus, if the case were determined on a good faith basis and I remanded, I’d be a loser.

Sandra Day O’Connor:

As a matter of state law?

John J. DeFranks:

Yes.

Given that the Magistrate credited the assertions of the affiant in this case, and there being no reason for anyone to suggest that something was left out of these affidavits, I think it’s fair and it’s reasonable to conclude that the films demonstrated probable obscenity.

Lastly, in conclusion, I assert and we request that affidavits be accepted as a legitimate basis upon Which to found a probable cause determination in an obscenity case.

Mandatory viewing of every frame of every film would severely tax an already overladen judiciary.

Further, the affidavits can be supplemented by inquiry by the Judge.

He can make inquiry of the affiant.

This Court’s determination that the review of obscenity requires a focused search implies that there should be interrogation, in fact, when the Magistrate has some concern as to the sufficiency of the affidavits.

John J. DeFranks:

I think more importantly, though, the existence of the safeguards to prevent substantial restraint, in this case render reasonable the use of affidavits to determine probable cause, in conclusion, I ask this Court–

John Paul Stevens:

May I ask you a question.

John J. DeFranks:

–Yes, sir.

John Paul Stevens:

You are not asking us to review the affidavits themselves to decide whether there is probable cause, are you?

As I understand the question presented, the question is whether matter of federal constitutional law something more than probable cause is required, and that is all you are asking us to decide?

John J. DeFranks:

Well, I’m asking two things.

Number one, whether… this Court to determine whether or not an elevated standard has been imposed.

John Paul Stevens:

Supposing we read the Court of Appeals’ opinion, and I was looking at page A-7 right after the footnote you refer to, and they are talking about, probable cause can or cannot be inferred.

Supposing we read the opinion as just having not applied an elevated standard of probable cause, contrary to the dissent’s view, that’s one reading, what would you ask us to do then?

John J. DeFranks:

Well, I would ask that if it were determined that the Court of Appeals was applying a probable cause standard, and I don’t believe that that’s the case, I would ask that you review the sufficiency of the evidence here as you did in Gates.

John Paul Stevens:

You want us to review each of these affidavits and then render an opinion on whether that’s probable cause?

John J. DeFranks:

The same as you did in Gates, make a legal determination as to their legal sufficiency.

John Paul Stevens:

As to each of these movies?

John J. DeFranks:

As to each of these movies.

John Paul Stevens:

And what is it in the opinion… could you tell me where you think the majority makes it most clear that they are applying an elevated standard, without regard to what the dissent says about it, because sometimes I think it’s a mistake to rely on other opinions to interpret the majority.

John J. DeFranks:

Well, first I would refer the Court to page A-7 where they refer to their standard.

This would be footnote 3 at A-7.

That’s the majority referring to the standard as being rejected unanimously.

John Paul Stevens:

That’s referring to what the dissent said.

It said, dissent doesn’t cite any… but is there anything in the text of the opinion that supports your view that they have applied anything other than a probable cause standard?

John J. DeFranks:

All right.

I would submit that page… the top paragraph of page A-7, the Court there indicates that the affidavits are ambiguous, equivocal.

We submit that to determine probable cause there always is going to be some equivocalness of the information because we can’t determine, at least to a prima facie standard or to a proof beyond a reasonable doubt, that the films are obscene.

John Paul Stevens:

Well, right after the footnote on page 3, they say,

“Probable cause cannot be inferred from the title of an hour and a half long a film, or from the description of a few scenes. “

But they seem to be trying to determine probable cause, which concerns me.

John J. DeFranks:

As we suggest, they pay lip service to probable cause and as the dissent–

John Paul Stevens:

You agree they do pay lip service to the probable cause standard?

John J. DeFranks:

–Yes.

John Paul Stevens:

But you say they misapplied that?

John J. DeFranks:

Yes.

As the dissenter points out, they were asking for an unequivocal demonstration of obscenity to establish probable cause to believe that the material was obscene.

John Paul Stevens:

Well, you say that, but their opinion doesn’t say they’re asking for an unequivocal demonstration of obscenity, does it?

John J. DeFranks:

No, but I think that the statement at page A-7 can be interpreted as saying, it must be unambiguous.

They criticized our affidavits for being ambiguous.

The result is that they must be demanding unambiguous affidavits.

William H. Rehnquist:

Well, you say from the sentence in A-7, that they are interpreting the affidavit in the way least damaging to the defendant–

John J. DeFranks:

Yes.

William H. Rehnquist:

–I mean, that is not a proper application, or that’s not the proper–

John J. DeFranks:

In avoiding what this Court has said about deference to the Magistrate.

In conclusion, I would urge that this Court recognize that there was no mass seizure here and that probable obscenity is the standard, that therefore the decision of the Court of Appeals be reversed.

Warren E. Burger:

Mr. Cambria.

Paul John Cambria, Jr.:

Mr. Chief Justice, and may it please the Court:

I believe that the decision below is simply a reflection, first of all, of the Court’s interpretation of its own rules.

As you’ll notice when you read their decision, they rely substantially upon decisions of the New York State Court of Appeals, and they discuss, and I think in line with Maryland v. Macon, they discuss the federal cases as guidance and they take the federal law of Roaden and Lee and so on from the standpoint of saying that there has to be a presumption of protection under the First amendment, that there is a higher hurdle that must be achieved when we’re analyzing this kind of material, but basically th bedrock of this decision is state law.

And in answering Mr. DeFranks, he says that they do not, the majority, answer the dissent, and the dissent cites no authority, they cite no state authority.

They rely from time to time upon federal cases which I think, when you analyze them, we determine just how low and how easy it has become throughout all these federal jurisdictions to obtain a warrant, to stop a publication which happens naturally in every case where a search warrant is issued.

There is a chill that occurs.

I think that the language of the Chief Justice in the Roaden case, and speaking on behalf of the Court indicating that when you take a film it’s the equivalent of taking a number of books and magazines, and that holds true here, and that’s what’s happened.

Warren E. Burger:

What was the chill here, in your view?

John J. DeFranks:

The chill here, Your Honor, is the fact that once A… this is not, first of all, an adult Bookstore.

This is not a yellow front bookstore.

This is a place where films are rented to the public from Stagecoach and Citizen Kane, all the way to some of films that are listed here in this piece of litigation.

And so, when someone is given a search warrant and they take not simply one copy for evidentiary purposes but all the copies that they could find, and in this case you’ll see and the record shows that they took two copies when they found two copies, and they took one copy when they found one copy, and the police had already copied themselves all of these tapes prior to the time they executed their search warrant.

They had no reason to take these particular tapes if they were simply interested in evidence versus interested in something beyond evidence which would necessitate them taking all the copies that were available.

William H. Rehnquist:

Mr. Cambria, was this point addressed by the New York Court of Appeals?

Paul John Cambria, Jr.:

The New York Court of Appeals, to my recollection, did not specifically address how many numbers of copies were taken.

William H. Rehnquist:

Did they unspecifically address the question?

Paul John Cambria, Jr.:

Pardon me?

William H. Rehnquist:

Did they unspecifically address the question?

Paul John Cambria, Jr.:

Only in reciting what had happened and what was taken.

William H. Rehnquist:

Did you make this argument to the New York Court of Appeals?

Paul John Cambria, Jr.:

We did not make an argument, a prior adversary hearing argument, because we don’t believe that prior adversary hearing is… this isn’t the Heller case, I submit, because in Heller this Court didn’t do away with the necessity of the scrupulous exactitude.

It just said that once the Magistrate has been satisfied and once the higher hurdle has been achieved, if you accomplish a mass seizure then you must give a post-seizure hearing.

But, it doesn’t do away with the initial step which requires the scrutiny, and what this Court said below is that, we think there are three parts to the test.

There isn’t just one part.

And this particular police officer concerned himself… and frankly he wasn’t a police officer, he was someone from the District Attorney’s office, he concerned himself only with attempting to describe the sexual conduct part, the second part of the Miller test.

He did nothing to address the other two parts of the test, and I think that this Court–

Sandra Day O’Connor:

Well, under Illinois versus Gates, doesn’t the Court ordinarily defer to reasonable inferences drawn by the issuing magistrate, even though they aren’t the only inferences that might be drawn?

Paul John Cambria, Jr.:

–I think the two things, yes, I think that under Illinois versus Gates that is a fair reading of the opinion there.

Secondly, that has not yet been applied in the State of New York and I reaffirm the fact that we have–

Sandra Day O’Connor:

So, it’s your position that we just shouldn’t apply the Illinois versus Gates standards of reviewing what the Magistrate did, is that your position?

Paul John Cambria, Jr.:

–Yes, and particularly in this First Amendment area.

If these cases mean anything, that were decided by this Court over a long stretch of our history, saying, “scrupulous exactitude”, and “higher hurdle” and “focus searchingly on the question” and so on, all of those words, if they mean anything then it seems to me that what we don’t do is, we don’t fill in the blanks and assume that the other two prongs exist, as this Court last term was not willing to fill in the blanks in the Spokane Arcade case.

There the argument was made on behalf of the Government that prongs B and C supply… or the test that was given there in Washington… supply prong A, and that fills the bill, and this Court took the position that… I think I’m accurately reflecting it… that they’re separate, that they’re independent, that you can’t have one slosh over, if you will, onto the other.

And what the Court below said was, and I submit this is the most important part of it, you must pay attention and deference to all three parts of the test.

Now, when we look at this affidavit, this particular investigator from the District Attorney’s office never even claims that he read the obscenity statute, that he even knew that there were three parts to it, that he even appreciated that there was more than one–

Warren E. Burger:

What difference does that make on the question of issuing a warrant?

John J. DeFranks:

I think it makes this difference, if I might, Mr. Chief Justice.

If the Goverment here takes the position that Franks v. Delaware applies, which I submit it doesn’t, then in order to achieve a hearing under that issue, under Franks v. Delaware, don’t I have to show that there’s a reckless disregard for the truth or that there’s an intentional misstatement of the facts?

Now, if I’m in a position where they have a person who goes in, who doesn’t even recite in his affidavit that he’s familiar with the fact that there are three prongs to statute, then how can I attribute to that individual the reckless disregard for sensitivity to the three prongs, or an intentional statement on the part of that individual that they left out information which would have borne upon the other two prongs of the test?

Warren E. Burger:

Well, all of the things you’re saying there, of course, are very important, in a very important way on the ultimate decision, but how do they bear on whether a warrant should issue?

Paul John Cambria, Jr.:

–I think that when we make a decision about probable cause, and I hope the history of the Court bears me out… I know it does with regard to the State Court decisions… that all of the elements must be satisfied in some preliminary fashion.

Byron R. White:

There isn’t in the record… the record doesn’t show what the Magistrate thought, does it?

Paul John Cambria, Jr.:

Well, yes, it does, and I’ll say how it does.

Byron R. White:

What does he say?

Paul John Cambria, Jr.:

Under 690.40 of our New York procedures, any communication whatsoever, beyond the papers is and must be recorded.

There was no such communication on this case.

Byron R. White:

It may not, but you’re not suggesting that the Magistrate didn’t know about what the cases required?

Paul John Cambria, Jr.:

But the Magistrate never reviewed any of the materials, Your Honor.

Paul John Cambria, Jr.:

That’s the problem.

The Magistrate, I think–

Byron R. White:

The Magistrate read the affidavit and let’s assume the Magistrate said, I know all about these three prongs and I’ve read all these affidavits and I infer that all… there’s probable cause to believe that all three prongs are satisfied.

Paul John Cambria, Jr.:

–I think that that’s precisely what–

Byron R. White:

We must assume that’s what… that he did that, at the minimum.

Paul John Cambria, Jr.:

–I think, as it comes up here, that assumption comes with it.

As we see the Court of Appeals’ analysis of it, the Court of Appeals said, there is no basis for you to do that, interpreting our cases which require a full and searching inquiry, using the words of the Court of Appeals, and are measured in comprehensive exam, we say that there was something more that had to be done, that at best, at best these affidavits could be described as ambiguous, and the Court said, the Magistrate should have taken that extra step.

And what I’m suggesting to this Court is, this case is not–

Byron R. White:

The State Court did decide this as a federal question, didn’t it?

Paul John Cambria, Jr.:

–Pardon me?

Byron R. White:

This was decided as a federal question?

Paul John Cambria, Jr.:

I don’t believe that that’s so, Your Honor.

I believe that when you analyze this decision, that this case is one State Court decision after another that does not have to rely upon, an does not rely upon federal precedent in order to be self-standing.

Byron R. White:

Well, we just shouldn’t ever have granted this?

Paul John Cambria, Jr.:

I agree, and I said that in my petition, in my opposition to the petition, because when you look at this case and you look at the main cases, the Podbora case, it relies on another New York State case and that New York State case chronicles all the state decisions.

And when you look at the opening salvos, the state Constitution is involved, all the state cases are discussed, and those are the things that the Court dwells on, the Court of Appeals.

They don’t dwell on the federal cases and say that it’s a federal standard.

They use the language of their own cases and they say it’s a state standard.

And, I think what the problem is, is when the court found there was an ambiguity here, and the ambiguity was because there was no addressing of the other two prongs of the test, and they said that in this particular very important area where we’ve used all these words, that they don’t consider platitudes like “scrupulous exactitude” and so on, that in this area we can assume and conjecture the various elements, that… I am sorry.

Sandra Day O’Connor:

Where is the clearer statement in the case which we require to go off on the adequate and independent state grounds, in light of the Court’s language dealing with application of the Fourth Amendment in the citation of Roaden, Marcus versus the search warrant, Stanford versus Texas, Maryland versus Macon?

There is no clear and plain statement that the Court was relying on state law.

Paul John Cambria, Jr.:

I think that when we analyze the decision at A-4 of the record, they start off by talking about it in parallel terms.

They say, New York Constitution, Article 1, Section 12, they cite that first.

They then go on to the Fourth Amendment.

They talk about reasonable cause under Article–

Sandra Day O’Connor:

It certainly doesn’t meet the Michigan versus Long standard by any stretch.

Paul John Cambria, Jr.:

–Well, I think that it meets it in this sense.

I think that Michigan versus Long says, and later on decisions of this Court, Upton, in the concurrence in Upton, indicated that it would be better, and there should be a definitive statement, so a lot of time is not wasted by reviews back and forth.

But I don’t believe that this Court said that if, in fact, the State Court does not specifically make a statement but makes it quite clear from their determination that the federal cases are guideposts and benchmarks but not what they’re relying on in making the decision.

They really use the federal cases for propositions such as, items are presumptively protected, or there’s a higher standard for books than there are for weapons.

William H. Rehnquist:

Take a look at A-4 and A-5, Mr. Cambria, the sentence beginning in the… it says,

“Thus, in applying the Fourth Amendment to such items the Court must act with “scrupulous exactitude”,. “

and it cites Stanford versus Texas, a case from this Court, see also Maryland versus Macon, a case from this Court.

Paul John Cambria, Jr.:

Yes, I think that that’s true in connection with that general principle which no one disagrees with, I hope, that there must be scrupulous exactitude.

But in fashioning what the Magistrate’s duty is down below they rely specifically and only on the New York State cases.

They say here, and the nub of the decision is, the Magistrate below, given all the platitudes of scrupulous exactitude and other things, the Magistrate below should have gotten involved.

It could have been the simplest thing, simply ask a question.

Would it be too much to ask that we had a procedure where the Magistrate simply said to the police officer, did you leave anything out?

Was there dialogue?

Was there a story?

I mean, a few pointed questions like that.

Affidavits would be sufficient.

There wouldn’t be an, bogging down of the warrant process.

It would just be true to the New York State precedent by saying, you’ve got to get involved, we can’t just assume that these points are established.

We can’t assume that these other facts will be established.

Because, really, when you look at the three-part test of Miller, the most important and the most difficult parts, R-A and R-C, the middle part is the easiest part.

Warren E. Burger:

Well, was the Miller case concerned with the issuance of a warrant, or was it concerned with the merits?

Paul John Cambria, Jr.:

Well, I think that we have to define what it is and what happened here is… forgetting the Miller case, taking the statute which the Court refers to, 235, it incorporates the definition of Miller.

Warren E. Burger:

All the things you were referring to from the Miller holding had to do with decision on the merits of the case, had nothing to do with the warrants, isn’t that so?

Paul John Cambria, Jr.:

If we look at… well, I think that interprets that statutes and you have to have… when you’re finding probable cause you have to start somewhere and I submit, Mr. Chief Justice, you must start with the statute and say, what are the elements that I as a judge am attempting to find probable cause to issue a warrant for.

And once you do that, you say there are three, and in this case I’m submitting that the court below is recognizing the two most important elements are the first one and the last one.

Everybody can describe the sexual conduct.

That’s easy.

Butwhere the judge is the most important critical factor is analyzing the pruriency part and analyzing the value part, and we see that when we look at our cases.

I cited for the Court–

William J. Brennan, Jr.:

Tell me, Mr. Cambria, do you think that it was the Magistrate’s duty to see the motion pictures?

Paul John Cambria, Jr.:

–I… the Court of Appeals, of course, says no.

The Court of Appeals says they can go on affidavits but they must get involved affirmatively.

William J. Brennan, Jr.:

And you agree to that?

Paul John Cambria, Jr.:

I believe that in exigent circumstances that that could be a substitute which would be available to the Court, meaning in the sense that–

William J. Brennan, Jr.:

Well, ordinarily do you think the Magistrate should see the films?

Paul John Cambria, Jr.:

–I think that the Magistrate should review the film.

That’s the way that the citizenry of our country–

William J. Brennan, Jr.:

He has to do that before he decides whether to issue the warrant?

Paul John Cambria, Jr.:

–I say yes, because I think that’s the best way, and in this case it was easy.

They had–

William J. Brennan, Jr.:

If this were a federal issue, is there any case of ours that says that?

Paul John Cambria, Jr.:

–There’s no case which says that.

It was left open in Lee Art, and it’s been talked about a number of times in other cases but there’s no case that I know of from this Court that says that you must see the film.

As far as I can determine the circuits are everywhere, in the sense that if we look at a catalogue of what some of the circuits have done as far as sufficiency of warrants… I mean, we can find the Fifth Circuit, for example, saying… and the Second Circuit saying that a simple picture and a few words description uttered by a police officer in an affidavit is enough to issue a search warrant.

Now, I submit that absolutely in no way takes into account the first and the third prong of the test, and I’m not saying there should be guilt or innocence, it shouldn’t be a screenplay attached to the warrant, shouldn’t be any of those things.

But we must in some way discuss these prongs because they are part of the offense involved, and in addition to that if we’re going to be true to all these statements we’ve made about the higher hurdle which must be achieved, or the scrupulous exactitude, then what does it mean if it can be satisfied by simply saying, there is a picture, I saw it, it shows this sexual conduct, and there was a brief description on the box and therefore the warrant should be issued.

I submit that what this case below has meant, what it does mean, is that it’s the procedure which is important.

If we take this procedure and we applied it to Tropic of Cancer or Capricorn, and I made reference to this in my brief, if we took this procedure and applied it to that, we could take the language that you find at page 145 of the decision written by the Ninth Circuit Court of Appeals in Capricorn and Tropic of Cancer, and in that case the words of the Judge were that,

“Practically everything that the world loosely regards as sin is detailed in vivid, lurid, salacious language of smut, prostitution and dirt, and all of it is related without the slightest expression of an idea of abandonment, consistent with the general tenor of the book even human excrement is dwelt upon in the dirtiest words. “

“The author conduct the reader through sex orgies and perversions of sex organs and always in the base language of the bawdy house. “

“Nothing has the grace of purity or goodness. “

I submit that this… that the cases that we cited in our brief, talking about the low threshold that’s emanated because of no stringent decision that there ought to be in this area, would take that language which was written by a federal judge in the Ninth Circuit and would say that that was enough of a description of Tropic of Cancer and Capricorn, Henry Miller novels which are all accepted now, to make them the subject of a search warrant for purposes of scrutinizing them with regard to obscenity.

It would be the same way if we paid no deference to the first and third prongs of the test, if I were to review Hair or one of the other accepted Broadway plays and just describe the sexual conduct that I saw with no reference to the music, no reference to the story line or the political satire, we’d be in the exact same position and I submit that a judge, following this laid-back approach, this lax approach, could simply issue a warrant, and where would I be under a Franks versus Delaware argument to say that the person who reviewed Hair, for example, didn’t read the obscenity statute, never declared that they did.

Usually officers in their affidavits may say they have a background, if they’re in drug work and they’re asking for a search warrant with regard to drugs, they iterate that they had some kind of experience in the past so that you’d have some way of putting what they say into context.

We don’t have that here, and if I gave you an affidavit from Hair, untaught as–

Thurgood Marshall:

Let’s take–

Paul John Cambria, Jr.:

–Your Honor?

Thurgood Marshall:

–A different kind of case.

A police officer comes in and says

“I saw Joe Blow shoot and kill John Jones, and I want a warrant for his arrest. “

Is that enough–

Paul John Cambria, Jr.:

I submit that would be enough for two reasons.

Thurgood Marshall:

–Doesn’t have to do anything about… doesn’t hays to do anything at all about the merits.

Paul John Cambria, Jr.:

Right.

Thurgood Marshall:

And that’s sufficient?

Paul John Cambria, Jr.:

Right, and that would be enough because, number one, he would have hit all the elements of murder, and secondly–

Thurgood Marshall:

I beg your pardon.

He didn’t say “premeditated”.

Paul John Cambria, Jr.:

–I think that the simple taking of life would have enough to show a violation of at least New York law.

Thurgood Marshall:

Why would not simple obscenity be enough?

Paul John Cambria, Jr.:

Because the difference is, there’s no First Amendment which presumptively protects murder.

There is a First Amendment which… and in Article 1, Section 12, which presumptively protects these publications which to, use the words of Roaden, are arguably–

Thurgood Marshall:

Have you anything else to go along with that?

Paul John Cambria, Jr.:

–Pardon me?

Thurgood Marshall:

Have you anything else to bolster that?

Paul John Cambria, Jr.:

I think I have all of these decisions that indicate that there must be the determination by the Magistrate and that the Magistrate has to make the finding and the determination through a higher hurdle, through a scrupulous exactitude, through a searching, focused inquiry, and I submit that that’s the difference here.

Thurgood Marshall:

And that’s only true for First Amendment?

Paul John Cambria, Jr.:

I believe that that’s true, and I believe that this Court has said that that’s true.

William H. Rehnquist:

What if you murdered an author, would that involve–

Paul John Cambria, Jr.:

Excuse me.

William H. Rehnquist:

–If you murdered an author, would that involve a First Amendment–

Paul John Cambria, Jr.:

I suppose that if you were a district attorney and you murdered an author because you were trying to silence what he was writing at the time, that that could be a First Amendment matter and we could have an argument with regard to it.

If I might, in summing this up–

John Paul Stevens:

–May I ask you a question before you sum up, Mr. Cambria.

Paul John Cambria, Jr.:

–Yes.

John Paul Stevens:

Because the question presented in the cert petition, I’m trying to figure out some way where I don’t have to decide whether there’s probable cause in all these affidavits, because that doesn’t seem to me to be something I should have to do in a case like this.

Do you agree the issue is just what standards should be applied in reviewing the affidavits that we have to decide under the questions presented, and if so, do you think the Court of Appeals applied… required more than a showing of probable cause?

Paul John Cambria, Jr.:

I think that the question here is, under New York State, as they perceive their laws, their statutes, their laws, their cases, did the Judge here, given these facts, have a sufficient basis to try to make a probable cause determination and only a probable cause determination.

The Court says on page A-5, consistent with these rules, the task of the issuing Magistrate in this case was not to decide guilt or innocence but to determine in a preliminary way from the information submitted and available to him, whether there was probable cause to believe that the material to be seized was obscene within the tripartite definition of the statute.

John Paul Stevens:

I recognize that, buy what about the sentence at the bottom of A-4, because there was seizure based upon ideas, that was based upon ideas, they contain… there is a higher standard for evaluation of a warrant application seeking to seize such things as books and films as opposed to–

Paul John Cambria, Jr.:

I think what that means is this: as this Court said in Roaden and Heller and Lee Art and all the cases we’ve talked about today, there’s a higher standard in a sense that the judge must focus searchingly on the question of obscenity, and even this Court used the word, on the question of obscenity, in Marcus, as opposed to probable obscenity.

So, what we’re saying, I think is what we’ve said in all these First Amendment… all these search and seizure cases that the Court has decided.

There is a higher hurdle in the sense of analyzing probable cause, because we do require this scrupulous exactitude and we do require it at the seizure stage.

That’s the would be involved.

Paul John Cambria, Jr.:

Other than that, only time the judge we’d have a decision on the merits.

So, Roaden and Lee and all these cases which dealt with search and seizure couldn’t have meant anything else except that in restraining the material ex parte which is what happened by the search warrant, there must be a higher hurdle, not guilt or innocence but a higher hurdle in how you evaluate probable cause.

So that it must–

Lewis F. Powell, Jr.:

–You rely on Roaden, and my recollection of that case is that there was no warrant involved.

They arrested the theater owner and took the film with them.

Paul John Cambria, Jr.:

–That’s true.

I say Roaden–

Lewis F. Powell, Jr.:

That case is–

Paul John Cambria, Jr.:

–Well, I take this position–

Lewis F. Powell, Jr.:

–several times–

Paul John Cambria, Jr.:

–Roaden, in the sense that Roaden seems to chronicle all the cases in this area, because Roaden takes us back to Marcus and says we have a higher hurdle.

It then talks about Lee Art Theater which was a case with a warrant where there was a perfunctory or a conclusory showing, and so it’s really a number of cases all together, and in New York it’s a whole number of separate cases all together.

Roaden didn’t have a warrant but Lee Art had a warrant.

Marcus had a warrant.

A Quantity of Books had a warrant.

Heller had a warrant.

And in all of those cases the Court always said that in this preliminary warrant procedure we must have this higher hurdle, and that’s all the Court was saying below, was that we must have this higher procedure not to establish guilt or innocence but have the Magistrate make the findings and have an adequate basis to make the findings, and I believe that’s all they’re saying.

They’re not saying, we’ve got to try the case before we ever have a trial, in essence, that we do it.

And the procedure that they suggest here is not elaborate.

It’s not cumbersome.

It’s simply, if you’re going to rely on affidavits as an issuing magistrate, get involved.

Ask some questions when there are ambiguities, under our state log of cases.

Ask some questions.

It’s as simple as that.

I think we’re entitled to that.

John Paul Stevens:

–May I ask you another question that puzzles me about this litigation.

I wonder what you accomplish by your Motion to Suppress.

Supposing you won your Motion to Suppress and they suppressed the stuff pursuant to a warrant, and then you still go to trial.

Can’t they just go rent the movie and put it in evidence?

Paul John Cambria, Jr.:

I… when we made that argument below, the response was that there would be some evidentiary objections.

Paul John Cambria, Jr.:

I don’t have any idea–

John Paul Stevens:

Respondent… these people who made up the affidavit know what the movies are, and I guess they’re on the market.

I don’t understand why you have to have such a big fight to suppress this stuff.

Paul John Cambria, Jr.:

–Well, the problem–

John Paul Stevens:

From either side, I mean, I don’t know what you gained.

Paul John Cambria, Jr.:

–What we gained is this: the minute that that warrant hits that store, which again is not the yellow front store, that sends a chill up the spine of those individuals that’s heard from coast to coast, and I mean that with all sincerity, because each time this warrant hits a store and some presumptively protected material is taken off the shelf pursuant to the warrant, that constitutes a chill which every one of us–

John Paul Stevens:

Would it be as much of a chill as being found guilty or the basis of… I assume some of it–

Paul John Cambria, Jr.:

–Your Honor, that issue was brought up in the Hair case, Southeastern Promotions, and of course this Court found there that the punishment after the crime such as in penal law situations is one thing, but punishment pre-crime which is the restraint situation is something more onerous, and I take the position that it is.

And I submit what happens, is, this procedure is important to us, and it’s very important as to how it affects not just these books, magazines, films, what have you, but all the others, the Tropic of Cancers of tomorrow, the Hairs and other cases of tomorrow.

How low can the threshold be, is what it amounts to.

In New York this Court has said that the Magistrate should be involved.

There should be this focused inquiry and so on.

I submit that’s fair, it’s reasonable, and we’re all entitled to it, and I ask you to affirm the decision below based upon the fact that we are entitled to that much since it will not stifle the criminal process–

It will not in any way hamper prosecutions.

It will simply protect us from overzealous individuals who come forth with warrants based upon applications like these where the Magistrate clearly was not involved and wasn’t true to the New York State decisions that he’s mandated to be bound by.

I thank you very much.

Warren E. Burger:

Mr. DeFranks.

John J. DeFranks:

I would like to just make one point, with regard to Franks versus Delaware.

If the affiant were to leave out the music of Hair, the dancing of another particular film, that would qualify as a reckless disregard, he couldn’t be faithful to a performance and leave out something like that, and that’s the way the third prong is proven, by omission.

Even when the Magistrate reviews the film there’s nothing that lights up the screen and says there are are no literary, artistic, political of scientific value.

It’s one that’s done by omission.

Thurgood Marshall:

Mr. Attorney General, why didn’t you buy a copy of this and renew… re-open the case rather than bothering us with it?

John J. DeFranks:

Well, they weren’t all firsthand.

Thurgood Marshall:

You didn’t have–

John J. DeFranks:

They were… having rented it and not returned it during a certain period, that might well he considered a seizure had we not returned it pursuant to the rental agreement, seizure without a warrant.

Thurgood Marshall:

–Well, couldn’t you have rented it long enough to copy it?

John J. DeFranks:

We could have rented it long enough to copy it, yes, we could have.

John Paul Stevens:

In fact, he says you did that, is that right?

And saved us all this trouble.

John J. DeFranks:

We did rent certain of them and copied certain of them, yes.

John Paul Stevens:

If you had the copies, then why did you have to fight about the suppression?

John J. DeFranks:

Because the actual films were the best evidence in this case to present to the jury.

We would have had to then–

John Paul Stevens:

The copies were not legible, is that what it is?

John J. DeFranks:

–Well, they would have had to have been verified.

It was just to eliminate–

John Paul Stevens:

Do you think it’s harder to verify copies than to come to the United States Supreme Court on an issue?

John J. DeFranks:

–No, but there was also more of an impact on the jury to show them the actual films that were taken from the store.

These were the films which were the subject of the promotion charge.

John Paul Stevens:

Is it correct that the only purpose of the seizure was for use as evidence?

There was no attempt to try to discourage the business before there was a trial on the merits?

John J. DeFranks:

Not at all.

John Paul Stevens:

Not at all?

John J. DeFranks:

No attempt.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.