A New York State Police investigator, after purchasing two films
from petitioner's "adult" bookstore and after viewing them and
concluding that they violated state obscenity laws, took the films
to a Town Justice, who also viewed the films. Based on the
investigator's affidavit, the justice issued a warrant authorizing
the search of the store and the seizure of other copies of the two
films. The investigator's affidavit also asserted that "similar"
films and printed matter portraying similar activities could be
found on the premises, and requested that the justice accompany the
investigator in executing the warrant so that the justice might
determine independently if any other items at the store were
possessed in violation of law and subject to seizure. The justice
included in the warrant a recital that authorized the seizure of
"[t]he following items which the Court independently [on
examination] has determined to be possessed in violation" of law.
However, at the time the justice signed the warrant, no items were
listed or described following this statement. The justice also
signed a warrant for the arrest of the store clerk for having sold
the two films to the investigator. Thereafter, the justice, the
investigator, and nine other law enforcement officials entered the
bookstore, arrested the clerk (the only employee present), and
advised him of the search warrant; they conducted a search that
lasted nearly six hours, covering various areas of the store, and
examined and seized numerous films, projectors, and magazines. The
seized items were inventoried at a State Police barracks, and each
item was then listed by the police on the search warrant.
Petitioner was charged with obscenity in the second degree. The
trial court denied petitioner's pretrial motion to suppress the
evidence as having been searched for and seized in violation of the
First, Fourth, and Fourteenth Amendments; petitioner then entered a
guilty plea. As permitted by New York law, petitioner appealed the
denial of the motion to suppress, and the convictions were
affirmed.
Held:
1. The Fourth Amendment does not permit the action taken here,
where, except for the specification of copies of the two films
previously
Page 442 U. S. 320
purchased by the investigator, the warrant did not purport to
particularly describe the things to be seized but, instead, left it
entirely to the discretion of the officials conducting the search
to decide what items were likely obscene and to accomplish their
seizure. The Fourth Amendment does not countenance open-ended
warrants to be completed while a search is being conducted and
items seized, or after the seizure has been carried out. Pp.
442 U. S.
325-326.
2. The Town Justice's presence and participation in the search
did not ensure that no items would be seized absent probable cause
to believe that they were obscene; nor did his presence provide an
immediate adversary hearing on the issue. The justice conducted a
generalized search, and was not acting as a neutral and detached
judicial officer. This procedure is not authorized by
Heller v.
New York, 413 U. S. 483.
Here, the Town Justice undertook to telescope the processes of the
application for a warrant, the issuance of the warrant, and its
execution. Pp.
442 U. S.
326-328.
3. The actions involved here cannot be justified on the theory
that, because the items at issue were displayed in areas of the
store open to the general public, petitioner had no legitimate
expectation of privacy against governmental intrusion and
warrantless search. Merely because a retail store invites the
public to enter, it does not consent to wholesale searches and
seizures that do not conform to Fourth Amendment guarantees. The
actions involved cannot be sustained on the ground that
petitioner's clerk consented to the sweeping search. After the
clerk was under arrest and aware of the presumed authority of the
search warrant, his conduct complying with official requests
cannot, on this record, be considered voluntary. Pp. 328-329.
Reversed and remanded.
BURGER, C.J., delivered the opinion for a unanimous Court.
Page 442 U. S. 321
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari on claims that the seizure of magazines,
films, and other objects from petitioner's bookstore violated
guarantees of the First, Fourth, and Fourteenth Amendments. 439
U.S. 978 (1978).
I
On June 20, 1976, an investigator for the New York State Police
purchased two reels of film from petitioner's so-called "adult"
bookstore. Upon viewing them, he concluded the films violated New
York's obscenity laws. On June 25, he took them to a Town Justice
for a determination whether there was reasonable cause to believe
the films violated the state obscenity laws so as to justify a
warrant to search the seller's store. The Town Justice viewed both
films in their entirety, and he apparently concluded they were
obscene. Based upon an affidavit of the investigator subscribed
before the Town Justice after this viewing, a warrant issued
authorizing the search of petitioner's store and the seizure of
other copies of the two films exhibited to the Town Justice.
The investigator's affidavit also contained an assertion that
"similar" films and printed matter portraying similar activities
could be found on the premises, and a statement of the affiant's
belief that the items were possessed in violation of the obscenity
laws. The warrant application requested that the Town Justice
accompany the investigator to petitioner's store for the execution
of the search warrant. The stated purpose was to allow the Town
Justice to determine independently if any other items at the store
were possessed in violation of law and subject to seizure. The Town
Justice agreed. Accordingly the warrant also contained a recital
that authorized the seizure of
"[t]he following items that the Court
Page 442 U. S. 322
independently [on examination] has determined to be possessed in
violation of Article 235 of the Penal Law. . . . [
Footnote 1] However, at the time the Town
Justice signed the warrant, there were no items listed or described
following this statement. As noted earlier, the only 'things to be
seized' that were described in the warrant were copies of the two
films the state investigator had purchased. Before going to the
store, the Town Justice also signed a warrant for the arrest of the
clerk who operated the store for having sold the two films to the
investigator."
The Town Justice and the investigator enlisted three other State
Police investigators, three uniformed State Police officers, and
three members of the local prosecutor's office -- a total of 11 --
and the search party converged on the bookstore. The store clerk
was immediately placed under arrest and advised of the search
warrant. He was the only employee present; he was free to continue
working in the store to the extent the search permitted, and the
store remained open to the public while the party conducted its
search mission, which was to last nearly six hours.
The search began in an area of the store which contained booths
in which silent films were shown by coin-operated projectors. The
clerk adjusted the machines so that the films could be viewed by
the Town Justice without coins; it is disputed whether he
volunteered or did so under compulsion of the arrest or the
warrant.
See infra at
442 U. S. 329.
The Town Justice viewed 23 films for two to three minutes each and,
satisfied there was probable cause to believe they were obscene,
then ordered the films and the projectors seized.
The Town Justice next focused on another area containing four
coin-operated projectors showing both soundless and sound films.
After viewing each film for two to five minutes,
Page 442 U. S. 323
again without paying, he ordered them seized along with their
projectors.
The search party then moved to an area in which books and
magazines were on display. The magazines were encased in clear
plastic or cellophane wrappers which the Town Justice had two
police officers remove prior to his examination of the books.
Choosing only magazines that did not contain significant amounts of
written material, he spent not less than 10 seconds nor more than a
minute looking through each one. When he was satisfied that
probable cause existed, he immediately ordered the copy which he
had reviewed, along with other copies of the same or "similar"
magazines, seized. An investigator wrote down the titles of the
items seized. All told, 397 magazines were taken.
The final area searched was one in which petitioner displayed
films and other items for sale behind a glass enclosed case. When
it was announced that each box of film would be opened, the clerk
advised that a picture on the outside of the box was representative
of what the film showed. Therefore, if satisfied from the picture
that there was probable cause to believe the film in the box was
obscene, the Town Justice ordered the seizure of all copies of that
film. As with the magazines, an investigator wrote down the titles
of the films seized, a total of 431 reels. [
Footnote 2] Miscellaneous other items, including
business records, were also seized, but no issue concerning them is
raised here
Throughout the day, two or three marked police cars were parked
in front of the store and persons who entered the store were asked
to show identification and their names were taken by the police.
Not surprisingly, no sales were made during the period the search
party was at the store, and no customers or potential customers
remained in the store for any appreciable time after becoming aware
of the police presence.
Page 442 U. S. 324
After the search and seizure was completed, the seized items
were taken to a State Police barracks, where they were inventoried.
Each item was then listed on the search warrant, and late the same
night the completed warrant was given to the Town Justice. The
warrant, which had consisted of 2 pages when he signed it before
the search, by late in the day contained 16 pages. It is clear,
therefore, that the particular description of "things to be seized"
was entered in the document after the seizure and impoundment of
the books and other articles.
The items seized formed the basis for a three-count information
charging petitioner with obscenity in the second degree under New
York law. [
Footnote 3] The
counts were based upon the three main groups of items seized, the
magazines, Count I; the films for sale to the public, Count II; and
the films and coin-operated projectors, Count III. Before trial,
petitioner moved to suppress all the evidence upon which the three
counts were based because it had been searched for and seized in
violation of the First, Fourth, and Fourteenth Amendments. The
motion was denied. Petitioner then entered a guilty plea to all
three counts and was fined $1,000 on each. Accordingly, the
obscenity of the magazines and films having been the subject of a
judicial confession, there is no issue of obscenity in the case.
[
Footnote 4] Only the validity
of the warrant and the search and seizure of the property are
before us.
Page 442 U. S. 325
New York permits appeal of a denial of a motion to suppress even
after a plea of guilty to the charge. N.Y.Crim.Proc.Law § 710.70(2)
(McKinney 1971). Pursuant to this procedure, petitioner appealed,
and the intermediate appellate court for that judicial district
affirmed the convictions. A timely application for leave to appeal
to the New York Court of Appeals was denied.
II
This search warrant and what followed the entry on petitioner's
premises are reminiscent of the general warrant or writ of
assistance of the 18th century against which the Fourth Amendment
was intended to protect.
See Marshall v. Barlow's, Inc.,
436 U. S. 307,
436 U. S. 311
(1978);
Stanford v. Texas, 379 U.
S. 476,
379 U. S. 481
(1965);
Marcus v. Search Warrant, 367 U.
S. 717,
367 U. S. 724
(1961). Except for the specification of copies of the two films
previously purchased, the warrant did not purport to "particularly
describ[e] . . . the . . . things to be seized." U.S.Const., Amdt.
4. Based on the conclusory statement of the police investigator
that other similarly obscene materials would be found at the store,
the warrant left it entirely to the discretion of the officials
conducting the search to decide what items were likely obscene, and
to accomplish their seizure. The Fourth Amendment does not permit
such action.
Roaden v. Kentucky, 413 U.
S. 496,
413 U. S. 502
(1973);
Stanford v. Texas, supra at
379 U. S. 485;
Marcus v. Search Warrant, supra at
367 U. S. 732.
Nor does the Fourth Amendment countenance open-ended warrants, to
be completed while a search is being conducted and items seized or
after the seizure has been carried out.
This search began when the local justice and his party entered
the premises. But, at that time, there was not sufficient probable
cause to pursue a search beyond looking for additional copies of
the two specified films, assuming the validity of searching even
for those. And the record is clear
Page 442 U. S. 326
that the search began and progressed pursuant to the sweeping
open-ended authorization in the warrant. It was not limited at the
outset as a search for other copies of the two "sample" films; it
expanded into a more extensive search because other items were
found that the local justice deemed illegal. Therefore, we have no
occasion to decide whether, in this context, the "plain view"
doctrine might be applicable.
See Coolidge v. New
Hampshire, 403 U. S. 443,
403 U. S. 465
(1971). [
Footnote 5] Nor can it
reasonably be argued that the search was incident to arrest of the
store clerk.
Chimel v. California, 395 U.
S. 752 (1969).
III
We have repeatedly said that a warrant authorized by a neutral
and detached judicial officer is
"a more reliable safeguard against improper searches than the
hurried judgment of a law enforcement officer 'engaged in the often
competitive enterprise of ferreting out crime.'
Johnson v.
United States, 333 U. S. 10,
333 U. S.
14 (1948)."
United States v. Chadwick, 433 U. S.
1,
433 U. S. 9
(1977).
See also Coolidge v. New Hampshire, supra at
403 U. S. 450.
The State contends that the presence and participation of the Town
Justice in the search ensured that no items would be seized absent
probable cause to believe they were obscene, and that his presence
enabled petitioner to enjoy an immediate adversary hearing on the
issue.
The Town Justice did not manifest that neutrality and detachment
demanded of a judicial officer when presented with a warrant
application for a search and seizure.
Coolidge v. New
Hampshire, supra at
403 U. S. 449.
We need not question the
Page 442 U. S. 327
subjective belief of the Town Justice in the propriety of his
actions, but the objective facts of record manifest an erosion of
whatever neutral and detached posture existed at the outset. He
allowed himself to become a member, if not the leader, of the
search party which was essentially a police operation. Once in the
store, he conducted a generalized search under authority of an
invalid warrant; he was not acting as a judicial officer, but as an
adjunct law enforcement officer. When he ordered an item seized
because he believed it was obscene, he instructed the police
officers to seize all "similar" items as well, leaving
determination of what was "similar" to the officer's discretion.
Indeed, he yielded to the State Police even the completion of the
general provision of the warrant. Though it would not have
validated the warrant in any event, the Town Justice admitted at
the hearing to suppress evidence that he could not verify that the
inventory prepared by the police and presented to him late that
evening accurately reflected what he had ordered seized.
We also cannot accept the State's contention that it acted in
compliance with
Heller v. New York, 413 U.
S. 483 (1973). There, based on police reports of
probable violation of state law, a judge viewed a film in a theater
as an ordinary paying patron; on the basis of his observation of
the entire performance, he then issued a warrant for the seizure of
the particular viewed film as evidence. There was no claim that
seizure of the single copy impeded the exhibitor's continued
business pending decision on the issue of obscenity. Heller's claim
was that not even one of his films could be lawfully seized without
a prior adversary hearing. We rejected that claim and held that
seizure on the warrant so issued by a neutral judicial officer on
probable cause after viewing one film was constitutionally
permissible so long as, on request, a prompt adversary hearing was
available on the issue of obscenity.
"With such safeguards, we do not perceive that an adversary
hearing prior to a seizure [of a single sample film] by lawful
Page 442 U. S. 328
warrant would materially increase First Amendment
protection."
Id. at
413 U. S. 493.
We also took pains to point out:
"Courts will scrutinize any large-scale seizure of books, films,
or other materials presumptively protected under the First
Amendment to be certain that the requirements of
A Quantity of
Books [v. Kansas, 378 U. S. 205 (1964),] and
Marcus [v. Search Warrant, 367 U. S.
717 (1961),] are fully met. . . ."
"But seizing films to destroy them or to block their
distribution or exhibition is a very different matter from seizing
a single copy of a film for the bona fide purpose of preserving it
as evidence in a criminal proceeding, particularly where, as here,
there is no showing or pretrial claim that the seizure of the copy
prevented continuing exhibition of the film."
Id. at
415 U. S.
491-492.
In contrast, the local justice here undertook to telescope the
processes of the application for a warrant, the issuance of the
warrant, and its execution. It is difficult to discern when he was
acting as a "neutral and detached" judicial officer and when he was
one with the police and prosecutors in the executive seizure, and
indeed even whether he thought he was conducting,
ex
parte, the "prompt" postseizure hearings on obscenity called
for by
Heller, supra, at
413 U. S. 492.
Heller does not permit the kind of activities revealed by
this record. [
Footnote 6]
IV
Perhaps anticipating our disposition of the case, the State
Page 442 U. S. 329
raises a different theory from the one advanced in its
opposition to the petition for certiorari and on which it had
relied in the state courts. The suggestion is that, by virtue of
its display of the items at issue to the general public in areas of
its store open to them, petitioner had no legitimate expectation of
privacy against governmental intrusion,
see Rakas v.
Illinois, 439 U. S. 128
(1978), and that, accordingly, no warrant was needed. But there is
no basis for the notion that, because a retail store invites the
public to enter, it consents to wholesale searches and seizures
that do not conform to Fourth Amendment guarantees.
See Lewis
v. United States, 385 U. S. 206,
385 U. S. 211
(1966). The Town Justice viewed the films not as a customer, but
without the payment a member of the public would be required to
make. Similarly, in examining the books and in the manner of
viewing the containers in which the films were packaged for sale,
he was not seeing them as a customer would ordinarily see them.
Any suggestion that petitioner, through its clerk, consented to
the sweeping search also comes too late. After Lo-Ji's agent was
placed under arrest and was aware of the presumed authority of the
search warrant, his conduct complying with official requests
cannot, on this record, be considered free and voluntary. Any
"consent" given in the face of "colorably lawful coercion" cannot
validate the illegal acts shown here.
Bumper v. North
Carolina, 391 U. S. 543,
391 U. S.
549-550 (1968). Our society is better able to tolerate
the admittedly pornographic business of petitioner than a return to
the general warrant era; violations of law must be dealt with
within the framework of constitutional guarantees.
The judgment of the Appellate Term of the Supreme Court of the
State of New York for the Ninth and Tenth Judicial Districts is
reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.
Reversed and remanded.
[
Footnote 1]
New York Penal Law § 235.00 (McKinney Supp. 1978-1979) is the
definitional section of the State's obscenity law. Petitioner was
later charged with obscenity in the second degree, § 235.05.
See n 3,
infra.
[
Footnote 2]
The State's brief asserts approximately 474 films were taken,
but, from the inventory filed in the case, it appears the number
was 431.
[
Footnote 3]
New York Penal Law § 235.05 (McKinney Supp. 1978-1979) defines
obscenity in the second degree as follows:
"A person is guilty of obscenity in the second degree when,
knowing its content and character, he:"
"1. Promotes, or possesses with intent to promote, any obscene
material . . . ."
Section 235 no of the Penal Law states:
"4. 'Promote' means to manufacture, issue, sell, give, provide,
lend, mail, deliver, transfer, transmute, publish, distribute,
circulate, disseminate, present, exhibit or advertise, or to offer
or agree to do the same."
[
Footnote 4]
The clerk arrested at petitioner's store entered a guilty plea
to a charge of disorderly conduct for selling the two films to the
State Police investigator. He did not appeal.
[
Footnote 5]
Of course, contraband may be seized without a warrant under the
"plain view" doctrine.
See, e.g., Ker v. California,
374 U. S. 23,
374 U. S. 42-43
(1963). But we have recognized special constraints upon searches
for and seizures of material arguably protected by the First
Amendment,
e.g., Heller v. New York, 413 U.
S. 483 (1973);
Marcus v. Search Warrant,
367 U. S. 717,
367 U. S.
731-732 (1961); materials normally may not be seized on
the basis of alleged obscenity without a warrant.
[
Footnote 6]
We do not suggest, of course, that a "neutral and detached
magistrate,"
Shadwick v. Tampa, 407 U.
S. 345,
407 U. S. 350
(1972), loses his character as such merely because he leaves his
regular office in order to make himself readily available to law
enforcement officers who may wish to seek the issuance of warrants
by him. For example, in
Heller, the judge signed the
search warrant for the seizure of the film in the theater itself.
But as we have just pointed out,
Heller cannot control
this case, where the local Town Justice undertook not merely to
issue a warrant, but to participate with the police and prosecutors
in its execution.