Roaden v. Kentucky

LOCATION: Allegheny County District Court

DOCKET NO.: 71-1134
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Kentucky Supreme Court

CITATION: 413 US 496 (1973)
ARGUED: Nov 14, 1972
DECIDED: Jun 25, 1973

Phillip K. Wicker - for petitioner
Robert V. Bullock - for respondent

Facts of the case


Media for Roaden v. Kentucky

Audio Transcription for Oral Argument - November 14, 1972 in Roaden v. Kentucky

Warren E. Burger:

We'll hear arguments next in number 71-1134, Roaden against Kentucky.

Mr. Wicker.

Phillip K. Wicker:

Mr. Chief Justice and may it please the Court.

The single issue in this case arises out of the conviction of the petitioner in the Circuit Court of Pulaski County, Kentucky following a jury trial for violating Kentucky's Obscenity Statute which is Kentucky Revised statute, Chapter 436, section 101.

Petitioner was convicted under subsection (2) of that statue which may be found on pages 3 and 4 of the brief for petitioner.

The facts in this case are simple and for the most part undisputed.

On the 9 -- September the 29th, 1970, the sheriff of Pulaski County, Kentucky purchased a ticket to Highway 27 Drive-In Theater which was managed by the petitioner.

The sheriff viewed the entire film being exhibited that evening which was entitled Cindy and Donna.

Immediately following the exhibition of the film, the sheriff proceeded to the projection booth of the theater and there arrested the petitioner upon a charge of violating the statue and seized the film.

At the time the arrest was made and the film was seized, there was no warrant in the hands of the sheriff issued by any magistrate.

No magistrate had viewed the film.

There were no descriptive affidavits before, for instance, any magistrate.

Immediately there was no hearing of any kind before a judicial officer, advisory or ex parte to focus on the question of obscenity.

The sheriff upon viewing the film, ex parte and on his own made a determination that the film was obscene and such ex parte determination on his part led to the arrest and seizure of the film.

Warren E. Burger:

Now if on Monday night the sheriff went with the local magistrate, a person authorized to issue warrants and the magistrate observed the film and then on Tuesday morning issued a warrant, would that satisfy your claims?

Phillip K. Wicker:

No, Your Honor.

Warren E. Burger:

You would want a -- you would want an adversary proceeding in which you could appear to try to persuade the magistrate that there was probable cause to believe?

Phillip K. Wicker:

That is correct Mr. Chief Justice.

That's correct.

Warren E. Burger:

You are going to tie out the issue of obscenity in the warrant issuing proceeding?

Phillip K. Wicker:

We, we would ask a meaningful opportunity on the part of the petitioner to be heard to counter the judgment of the local law enforcement officer, that the film was obscene.

William J. Brennan, Jr.:

But would the issue then not be probable cause, but obscenity down on of the film?

Phillip K. Wicker:

I think the issue would be probable obscenity of the film.

William J. Brennan, Jr.:

Probable cause.

Potter Stewart:

I don't see, to follow up the question of Chief Justice, I don't see why in your case, may be you are concerned about in hearing the success of the next case, but taking your case alone, I don't see why you need to contend that the constitution requires an adversary hearing.

You simply I should suppose make the contend that the constitution requires that there can be no seizure except by warrant issued by magistrate, a neutral and detached magistrate on the basis of probable cause.

Yet all through your brief, you talk about of an adversary hearing being required.

Phillip K. Wicker:

Your Honor, we believe the issue of obscenity is so sensitive and this Court had said that it's separated by only a down and uncertain line and that separation calls for the use of sensitive tools.

We believe that it is required here.

Warren E. Burger:

You think it's more sensitive than searching a private home?