Admission in evidence of allegedly obscene motion picture films
seized under the authority of a warrant issued by a justice of the
peace on a police officer's affidavit giving the films' titles, and
stating that he had determined from personal observation of the
films and of the theatre's billboard that they were obscene, was
erroneous, as the issuance of the warrant without the justice of
the peace's inquiry into the factual basis for the officer's
conclusions fell short of constitutional requirements demanding
necessary sensitivity to freedom of expression.
Certiorari granted; judgment reversed and remanded.
PER CURIAM.
The petition for a writ of certiorari is granted. Petitioner,
operator of a motion picture theatre in Richmond, Virginia, was
convicted in the Hustings Court of Richmond of possessing and
exhibiting lewd and obscene motion pictures in violation of Title
18.1-228 of the Code of Virginia. The Supreme Court of Appeals of
Virginia refused a writ of error.
The films in question were admitted in evidence over objection
that they had been unconstitutionally seized. The seizure was under
the authority of a warrant issued by a justice of the peace on the
basis of an affidavit of a police officer which stated only the
titles of the motion pictures and that the officer had determined
from personal observation of them and of the billboard in front of
the theatre that the films were obscene.
Page 392 U. S. 637
The admission of the films in evidence requires reversal of
petitioner's conviction. A seizure of allegedly obscene books on
the authority of a warrant
"issued on the strength of the conclusory assertions of a single
police officer, without any scrutiny by the judge of any materials
considered . . . obscene,"
was held to be an unconstitutional seizure in
Marcus v.
Search Warrant, 367 U. S. 717,
367 U. S.
731-732. It is true that a judge may read a copy of a
book in courtroom or chambers, but not as easily arrange to see a
motion picture there. However, we need not decide in this case
whether the justice of the peace should have viewed the motion
picture before issuing the warrant. The procedure under which the
warrant issued solely upon the conclusory assertions of the police
officer without any inquiry by the justice of the peace into the
factual basis for the officer's conclusions was not a procedure
"designed to focus searchingly on the question of obscenity,"
id. at
367 U. S. 732,
and therefore fell short of constitutional requirements demanding
necessary sensitivity to freedom of expression.
See Freedman v.
Maryland, 380 U. S. 51,
380 U. S.
58-59.
The judgment of the Supreme Court of Appeals of Virginia is
reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE STEWART
base their concurrence in the judgment of reversal upon
Redrup
v. New York, 386 U. S. 767.
MR. JUSTICE HARLAN, dissenting.
A police officer filed a sworn affidavit that he had personally
witnessed the commission of a crime, to-wit, the possession and
exhibition of obscene motion pictures. He was granted a warrant to
seize the pictures, and did so.
Page 392 U. S. 638
In
Marcus v. Search Warrant, 367 U.
S. 717, officers were given a general warrant to seize
obscene materials, pursuant to which they selected and seized
11,000 copies of 280 publications most of which were later found
nonobscene. With barely a nod to the difference between 11,000
books and magazines selected for seizure by the officers themselves
after a warrant had been issued and two obscene movies named in the
affidavit, the Court reverses the present conviction on the
authority of
Marcus.
I think that
Marcus was correctly decided, but I cannot
discern its application here. Police officers may not be given
carte blanche to seize, but they may certainly seize a
specifically named item on probable cause, before the work, "taken
as a whole," has been adjudicated obscene. Any other rule would
make adjudication not merely "not as easily arrange[d]" in the case
of movies, but quite impossible. If the Court means only that the
officer should not merely say that he has seen a movie and
considers it obscene, but should offer something in the way of a
box score of what transpires therein, I consider it absurd to think
that a magistrate, armed with the luminous guidance this Court has
afforded, will be thus able to make a better judgment of probable
obscenity.
Since the petitioner does not contend that the movies in
question here were not obscene, I find it unnecessary to reach the
point relied on by my Brothers BLACK, DOUGLAS, and STEWART.