Following an investigation by the Erie County, N.Y. District
Attorney's Office, an investigator viewed videocassette movies that
had been rented from respondents' store by a member of the County
Sheriff's Department. The investigator then executed affidavits
summarizing the theme of, and conduct depicted in, each movie.
These affidavits were attached to an application for a warrant to
search respondents' store, and a New York Supreme Court Justice
issued the warrant authorizing the search and the seizure of the
movies. The warrant was executed, and the movies were seized.
Respondents were charged in a New York Justice Court with violating
the New York obscenity statute, and moved to suppress the seized
movies on the ground that the warrant was issued without probable
cause to believe that the movies were obscene. The Justice Court
granted the motion and dismissed the charges, and both the County
Court and the New York Court of Appeals affirmed. The Court of
Appeals held that there was a "higher" probable cause standard for
issuing warrants to seize such things as books and movies than for
warrants to seize such things as weapons or drugs, and that, under
this "higher" standard, there was insufficient information in the
affidavits to permit the issuing justice to believe that the movies
in question were obscene under New York law.
Held: No "higher" probable cause standard was required
by the First Amendment for issuance of the warrant in question. An
application for a warrant authorizing the seizure of materials
presumptively protected by the First Amendment should be evaluated
under the same probable cause standard used to review warrant
applications generally, namely, that there is a "fair probability"
that evidence of a crime will be found in the particular place to
be searched. Evaluating the supporting affidavits here under this
standard, the warrant was supported by probable cause to believe
that the movies were obscene under New York law, and they should
not have been suppressed. Pp.
475 U. S.
873-878.
65 N.Y.2d 566, 483 N.E.2d 1120, reversed and remanded.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ.,
joined.
Page 475 U. S. 869
MARSHALL, J., filed a dissenting opinion, in which BRENNAN and
STEVENS, JJ., joined,
post, p.
475 U. S.
884.
JUSTICE REHNQUIST delivered the opinion of the Court.
This case concerns the proper standard for issuance of a warrant
authorizing the seizure of materials presumptively protected by the
First Amendment. Respondents P. J. Video, Inc., and James Erhardt
were charged in the village of Depew, New York, Justice Court with
six counts of obscenity in the third degree under § 235.05(1) of
the New York Penal Law. [
Footnote
1] Respondents moved to suppress five videocassette movies that
had been seized from respondents' store, and that formed the basis
for the obscenity charges
Page 475 U. S. 870
against respondents, on the ground that the warrant authorizing
the seizure was issued without probable cause to believe that the
movies were obscene. The Justice Court granted the motion and
dismissed the informations under which respondents were charged,
and both the County Court of Erie County and the New York Court of
Appeals affirmed. 65 N.Y.2d 566, 483 N.E.2d 1120 (1985). We granted
certiorari to resolve the conflict between the decision of the New
York Court of Appeals in the instant case and the decisions in
Sequoia Books, Inc. v. McDonald, 725 F.2d 1091 (CA7 1984),
and
United States v. Pryba, 163 U.S.App.D.C. 389, 502 F.2d
391 (1974),
cert. denied, 419 U.
S. 1127 (1975). 474 U.S. 918 (1985). We now reverse the
judgment of the Court of Appeals.
The obscenity charges against respondents arose out of an
investigation by the Erie County District Attorney's Office.
Investigator David J. Groblewski was assigned to review 10
videocassette movies that had been rented from respondents' store
by a member of the Erie County Sheriff's Department. [
Footnote 2] Groblewski viewed the movies in
their entirety, and executed affidavits summarizing the theme of,
and conduct depicted in, each film. The affidavits were attached to
an application filed by the village of Depew Police Department for
a warrant to search respondents' store.
A justice of the New York Supreme Court issued the warrant,
authorizing the search of the store and the seizure of the movies.
The warrant was executed the next day and, according to a sworn,
itemized inventory statement, the police seized 1 or 2 copies of
each of the 10 movies. A total of 13 videocassettes were seized.
The justice who had issued the warrant ordered that the
videocassettes be temporarily
Page 475 U. S. 871
retained by the police as evidence for trial.
See
N.Y.Crim.Proc.Law §§ 690.05-690.55 (McKinney 1984).
Respondents ultimately were charged in the village of Depew
Justice Court with violating the New York obscenity laws with
respect to only 5 of the 10 movies. The affidavits describing these
five movies appear in full in the
475
U.S. 868app|>Appendix to this opinion. [
Footnote 3] Respondents moved for suppression of
the seized videocassettes, alleging that the warrant authorizing
their seizure was not supported by probable cause because the
issuing justice had not personally viewed the movies. The Justice
Court granted the motion and dismissed the informations under which
respondents were charged, and on the State's appeal the County
Court of Erie County affirmed.
The New York Court of Appeals likewise affirmed, although on a
different theory than that of the Justice Court. According to the
Court of Appeals,
"there is a higher standard for evaluation of a warrant
application seeking to seize such things as books and films, as
distinguished from one seeking to seize weapons or drugs, for
example (
Roaden v. Kentucky,
[
413 U.S.
496],
413 U. S. 504 [1973];
Marcus v. Search Warrant, 367 U. S.
717,
367 U. S. 730-731 [1961]).
In applying the [Fourth] Amendment to such items, the court must
act with 'scrupulous exactitude' (
Stanford v. Texas,
379 U. S.
476,
379 U. S. 481-485 [1965];
see also Maryland v. Macon, 472 U. S.
463 [1985])."
65 N.Y.2d at 569-570, 483 N.E.2d at 1123 (footnote omitted).
Using this "higher" probable cause standard to review the
affidavits submitted in support of the warrant application, the
Court of Appeals stated:
"Many of the scenes described contain explicit sexual activity,
patently offensive by any constitutional standard, but the
allegations of the affidavits do not indicate whether they
constitute all, most or a few of the scenes
Page 475 U. S. 872
presented in the films. . . . The descriptions of the action are
not supplemented by references to the narrative or dialogue of the
films and the affiant attempted to describe the 'character' or
'theme' of the movies by settings having nothing to do with the
plot. . . . He made no attempt to reveal the story line (or lack of
one) of the films or demonstrate that their 'predominant appeal'
was to prurient interest. In short, none of the affidavits permit
an inference that the scenes described are more than a catalog of
offensive parts of the whole."
Id. at 570-571, 483 N.E.2d at 1124. The Court of
Appeals concluded that the affidavits did not contain sufficient
information to permit the issuing justice,
"applying contemporary community standards, to judge the films
as a whole and determine that they are within the statutory
definitions of obscenity, and thus are not entitled to
constitutional protection."
Id. at 572, 483 N.E.2d at 1124 (footnote omitted). One
judge dissented, arguing that the affidavits contained enough
information for the issuing justice "to reasonably believe that the
video movies were obscene as legislatively defined."
Id.
at 573, 483 N.E.2d at 1125 (Jasen, J., dissenting). [
Footnote 4]
Page 475 U. S. 873
We have long recognized that the seizure of films or books on
the basis of their content implicates First Amendment concerns not
raised by other kinds of seizures. For this reason, we have
required that certain special conditions be met before such
seizures may be carried out. In
Roaden v. Kentucky,
413 U. S. 496
(1973), for example, we held that the police may not rely on the
"exigency" exception to the Fourth Amendment's warrant requirement
in conducting a seizure of allegedly obscene materials, under
circumstances where such a seizure would effectively constitute a
"prior restraint."
In A Quantity of Books v. Kansas,
378 U. S. 205
(1964), and
Marcus v. Search Warrant, 367 U.
S. 717 (1961), we had gone a step farther, ruling that
the large-scale seizure of books or films constituting a "prior
restraint" must be preceded by an adversary hearing on the question
of obscenity. In
Heller v. New York, 413 U.
S. 483 (1973), we emphasized that, even where a seizure
of allegedly obscene materials would not constitute a "prior
restraint," but instead would merely preserve evidence for trial,
the seizure must be made pursuant to a warrant and there must be an
opportunity for a prompt postseizure judicial determination of
obscenity. And in
Lee Art Theatre, Inc. v. Virginia,
392 U. S. 636
(1968), we held that a warrant authorizing the seizure of materials
presumptively protected by the First Amendment may not issue based
solely on the conclusory allegations of a police officer that the
sought-after materials are obscene, but instead must be supported
by affidavits setting forth specific facts in order
Page 475 U. S. 874
that the issuing magistrate may "focus searchingly on the
question of obscenity."
Marcus, supra, at
367 U. S. 732;
see also Stanford v. Texas, 379 U.
S. 476,
379 U. S. 486
(1965). [
Footnote 5]
The New York Court of Appeals construed our prior decisions in
this area as standing for the additional proposition that an
application for a warrant authorizing the seizure of books or films
must be evaluated under a "higher" standard of probable cause than
that used in other areas of Fourth Amendment law. But we have never
held or said that such a "higher" standard is required by the First
Amendment. In
Heller, we said:
"[S]eizing 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. If such a seizure is
pursuant to a warrant,
issued after a determination of probable
cause by a neutral magistrate, and, following the seizure, a
prompt judicial determination of the obscenity issue in an
adversary proceeding is available at the request of any interested
party, the seizure is constitutionally permissible. . . ."
"
The necessity for a prior judicial determination of
probable cause will protect against gross abuses. . . ."
413 U.S. at
413 U. S.
492-493 (emphasis added; footnotes omitted).
Page 475 U. S. 875
We think that this passage from
Heller, emphasizing the
requirement that the magistrate determine probable cause as a means
of safeguarding First Amendment interests, and eschewing any
suggestion that the standard of probable cause in the First
Amendment area is different than in other contexts, suggests that
we saw no need for the latter requirement. In our view, the
longstanding special protections described above, and enunciated in
cases such as
Roaden, A Quantity of Books, Marcus, Heller,
and
Lee Art Theatre, are adequate to ensure that First
Amendment interests will not be impaired by the issuance and
execution of warrant authorizing the seizure of books or films. We
think, and accordingly hold, that an application for a warrant
authorizing the seizure of materials presumptively protected by the
First Amendment should be evaluated under the same standard of
probable cause used to review warrant applications generally.
[
Footnote 6]
Page 475 U. S. 876
That standard was recently set forth by this Court in
Illinois v. Gates, 462 U. S. 213
(1983):
""[T]he term
probable cause,' . . . means less than evidence
which would justify condemnation. . . . It imports a seizure made
under circumstances which warrant suspicion.' [Locke v.
United States, 7 Cranch 339,
11 U. S. 348
(1813).] . . . Finely tuned standards such as proof beyond a
reasonable doubt or by a preponderance of the evidence, useful in
formal trials, have no place in the magistrate's decision."
"
* * * *"
"The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, . . . there is
a fair probability that contraband or evidence of a crime will be
found in a particular place. And the duty of a reviewing court is
simply to ensure that the magistrate had a 'substantial basis for .
. . concluding,]' [
Jones v. United States, 362 U. S.
257,
362 U. S. 271 (1960),] that
probable cause existed."
Id. at
462 U. S. 235,
462 U. S.
238-239. Applying the
Gates standard to the
affidavits in the instant case, we think it clear beyond
peradventure that the warrant was supported by probable cause to
believe that the five films at issue were obscene under New York
law. Respondents concede that the affidavits describing the five
films adequately established probable cause with respect to the
second of the three elements of obscenity under the statute,
namely, that the movies depicted "in a patently offensive manner"
the various kinds of sexual conduct specified in the statute.
See N.Y. Penal Law § 235.00(1)(b) (McKinney 1980). Our
review of the affidavits convinces us that the issuing justice also
was given more than enough information to conclude that there was a
"fair probability" that the movies satisfied
Page 475 U. S. 877
the first and third elements of the statutory definition,
namely, that the "predominant appeal [of the movies] is to the
prurient interest in sex," and that the movies "lac[k] serious
literary, artistic, political, and scientific value."
See
N.Y. Penal Law §§ 235.00(1)(a), (c) (McKinney 1980). As Judge Jasen
of the Court of Appeals noted in his dissent in the present
case:
"Each of the affidavits describing the films clearly state at
the outset that 'the
content and character of the above
mentioned video movie is as follows.' Inasmuch as the magistrate
was reviewing affidavits describing movies which were advertised by
defendants as 'adult cassette movies,' it was reasonable for him to
believe that the affidavits faithfully and accurately described the
substance of each movie as a whole. Each affidavit describes the
numerous acts of deviate sexual intercourse and the objectification
of women occurring in each film which the majority concede to be
offensive. Each film is of relatively short duration. Manifestly,
the acts described in each movie consume a substantial timespan.
Thus, the magistrate may reasonably have concluded that the
described, successive acts of deviate sexual intercourse pervaded
each film. When the title of each movie is considered together with
its plot and setting, its general theme and serious value, if any,
may reasonably be discerned. The films were described in each of
the five nonconclusory affidavits in such a fashion as to permit
the magistrate to focus searchingly on the issue of obscenity.
Under these circumstances, there was a reasonable basis for the
magistrate to authorize the seizure of the films in question."
65 N.Y.2d at 580, 483 N.E.2d at 1130 (emphasis in original).
We believe that the analysis and conclusion expressed by the
dissenting judge are completely consistent with our statement in
Gates that "probable cause requires only a probability
Page 475 U. S. 878
or substantial chance of criminal activity, not an actual
showing of such activity." 462 U.S. at
462 U. S. 244,
n. 13. We hold that, evaluated under the correct standard of
probable cause, the warrant was properly issued, and the
videocassettes of the five movies should not have been suppressed.
The judgment of the New York Court of Appeals is accordingly
reversed, and the cause remanded to that court for further
proceedings not inconsistent with this opinion.
It is so ordered.
|
475
U.S. 868app|
APPENDIX TO OPINION OF THE COURT
AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF ERIE ) SS:
CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to
the Erie County District Attorney's Office and prior to this, a
member of the New York State Police for approximately 25 years.
On September 26th, 1983, I viewed the video tape movie
"CALIFORNIA VALLEY GIRLS," which was rented on September 20th,
1983, from Network Video, 5868 Transit Road, Depew, New York. This
movie was rented by Detective Sergeant Vincent Costanza, a member
of the Erie County Sheriff's Department. This movie was viewed in
my office starting at 12:00 Noon and lasted until 1:33 P.M.
The content and character of the above mentioned video movie is
as follows: six white females, approximately 18 to 25 years of age,
are unemployed and attempt to make a living by
Page 475 U. S. 879
becoming prostitutes. The first scene is a bedroom scene where
two females are involved in lovemaking, fondling and cunnilingus.
The second scene depicts a white male and a white female having
intercourse in the back of a van. The third scene is a house scene
where six girls, all white females, are introduced to the art of
lovemaking. One male, approximately 35 years of age, is teaching
the girls the art of fellatio, with each one of them performing
this act on him. The next scene is a bedroom scene in a home where
a husband and wife, a white male and a white female, alone with a
girl, a white female, perform various sexual acts which include
intercourse, fellatio, anal intercourse and cunnilingus. The movie
ends with some lesbianism where the wife performs cunnilingus on
the girl while she performs fellatio on the husband and they engage
in intercourse and anal intercourse.
[Signature]
David J. Groblewski
Confidential Criminal
Investigator
Subscribed and sworn to
before me this [21] day
of November, 1983.
[Signature]
Notary Public
AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF ERIE ) SS:
CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to
the Erie County District Attorney's Office and
Page 475 U. S. 880
prior to this, a member of the New York State Police for
approximately 25 years.
On September 23rd, 1983, I viewed the video tape movie "TABOO
II," which was rented on September 20th, 1983, from Network Video,
5868 Transit Road, Depew, New York. T his movie was rented by
Detective Sergeant Vincent Costanza, a member of the Erie County
Sheriff's Department. This movie was viewed in my office starting
at 9:00 A.M. and with several interruptions lasted until 12:12
P.M.
The content and character of the above mentioned video movie:
The theme of the movie is a middle-class neighborhood where a home
is the place where all the sexual acts are performed. The movie
starts with a brother and sister, a white male and white female,
fondling each other. The second scene is another house scene where
a white male and white female are giving a rubdown to a white
female. The sexual acts that follow include cunnilingus and
fellatio. There is also intercourse and the scene closes with the
male placing his penis between the girl's breasts and ejaculating
into and over her mouth. In another scene there is some incestuous
type activity between the brother and the sister where again
fellatio and intercourse are performed. At one point during the
movie the mother enters the bedroom and observes the two performing
the sexual acts and becomes depressed about the situation. In a
later scene the son and his mother are on a couch where they become
involved in sexual acts of intercourse and fellatio. The movie
closes with the mother and father asleep in their bedroom at which
time the daughter enters and sleeps next to her father, where they
perform incestuous acts of intercourse, and she performs fellatio
on her father.
[Signature]
Subscribed and sworn to before me
this [21] day of November, 1983
[Signature]
Notary Public
Page 475 U. S. 881
AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF ERIE ) SS:
CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to
the Erie County District Attorney's Office and prior to this, a
member of the New York State Police for approximately 25 years.
On September 29th, 1983, I viewed the video tape movie "TABOO,"
which was rented on September 27th, 1983, from Network Video, 5868
Transit Road, Depew, New York. This movie was rented by Detective
Sergeant Vincent Costanza, a member of the Erie County Sheriff's
Department. This movie was viewed in my office starting at 11:00
A.M. and lasted until 11:55 A.M. and watched again commencing at
1:42 P.M. and lasting until 2:23 P.M.
The content and character of the above mentioned video movie is
as follows: The first scene is a bedroom scene where two white
females and one white male perform various acts of fellatio,
cunnilingus and intercourse. The second scene is a house party
scene where many white males and white females are involved in
various acts of intercourse, fellatio and cunnilingus. There is
also a scene where females perform acts of cunnilingus on each
other. The movie portrays at one point a bedroom scene with a white
male, the son, laying in bed naked, at which time his mother, a
white female enters the room. She makes love to him and incestuous
acts of intercourse, placing of the penis between her breasts,
ejaculation and cunnilingus are performed.
[Signature]
David J. Groblewski
Confidential Criminal
Investigator
Page 475 U. S. 882
Subscribed and sworn to
before me this [21] day
of November, 1983.
[Signature]
Notary Public
AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF ERIE ) SS:
CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to
the Erie County District Attorney's Office and prior to this, a
member of the New York State Police for approximately 25 years.
On September 28th, 1983, Detective Sergeant Vincent Costanza, a
Member of the Erie County Sheriff's Department and I viewed the
video tape movie "ALL AMERICAN GIRLS," which was rented on
September 27th, 1983, from Network Video, 5868 Transit Road, Depew,
New York. This movie was viewed in my office starting at 11:35
A.M., and lasted until 1:00 P.M.
The content and character of the above mentioned video movie is
as follows: The theme of the movie is a home of one of the six
girls, all white females who had previously attended high school
and were meeting for a reunion. The first scene is two girls in a
room performing acts of lesbianism, namely cunnilingus on each
other. They are met by a white male and they perform acts of
fellatio on him, have intercourse and all leave the room.
Throughout the movie the girls reminisce about their high school
days with each one depicting her sexual acts with her male partner.
The sexual
Page 475 U. S. 883
acts which followed included intercourse, fellatio and
cunnilingus.
[Signature]
David J. Groblewski
Confidential Criminal
Investigator
Subscribed and sworn to
before me this [21] day
of November, 1983.
[Signature]
Notary Public
AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF ERIE ) SS:
CITY OF BUFFALO )
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to
the Erie County District Attorney's Office and prior to this, a
member of the New York State Police for approximately 25 years.
On October 3rd, 1983, Detective Sergeant Vincent Costanza, a
member of the Erie County Sheriff's Department and I viewed the
video tape movie "DEBBIE DOES DALLAS," which was rented on
September 30th, 1983, by Vincent Costanza from Network Video, 5868
Transit Road, Depew, New York. This movie was viewed in my office
starting at 2:50 P.M. and lasted until 4:23 P.M.
The content and character of the above mentioned video movie is
as follows: The theme of the movie is a girl moving out west for a
change of atmosphere. The first scene is a jail scene where a white
female is in jail after she had been put there by the so-called
Sheriff, a white male, and she performs fellatio on him. The two
then perform intercourse, at which
Page 475 U. S. 884
time he removes his pants and ejaculates over her buttocks. The
second scene is the ranch, a so-called house of ill-repute, a
bedroom scene in which a white male and a white female are involved
in various sexual acts including fellatio, cunnilingus and
intercourse. At the end of the scene, the male ejaculates in and
over the female's mouth. The third scene, a bathroom scene, depicts
some lesbianism involving three girls. They participate in
lovemaking, foreplay and performing cunnilingus on each other.
Throughout, the movie depicts some lesbianism along with sexual
acts of intercourse, fellatio and cunnilingus.
[Signature]
David J. Groblewski
Confidential Criminal
Investigator
Subscribed and sworn to
before me this [21] day
of November, 1983.
[Signature]
Notary Public
[
Footnote 1]
Section 236.06(1) (McKinney Supp.1986) provides:
"A person is guilty of obscenity in the third degree when,
knowing its content and character, he:"
"1. Promote, or possesses with intent to promote, any obscene
material. . . ."
"Obscenity in the third degree is a class A misdemeanor."
The statutory definition of "obscenity," which is derived from
Miller v. California, 413 U. S. 15
(1973), appears at § 235.00(1) (McKinney 1980):
". . . Any material or performance is 'obscene' if (a) the
average person, applying contemporary community standards, would
find that considered as a whole, its predominant appeal is to the
prurient interest in sex, and (b) it depicts or describes in a
patently offensive manner, actual or simulated: sexual intercourse,
sodomy, sexual bestiality, masturbation, sadism, masochism,
excretion or lewd exhibition of the genitals, and (c) considered as
a whole, it lacks serious literary, artistic, political, and
scientific value. Predominant appeal shall be judged with reference
to ordinary adults unless it appears from the character of the
material or the circumstances of its dissemination to be designed
for children or other specially susceptible audiences."
[
Footnote 2]
The 10 movies were entitled "California Valley Girls," "Taboo
II," "Taboo," "All American Girls," "Debbie Does Dallas," "Body
Magic," "Deep Throat," "Every Which Way She Can," "Filthy Rich,"
and "Little Girls Blue."
[
Footnote 3]
The five movies that formed the basis for the obscenity charges
against respondents were "California Valley Girls," "Taboo II,"
"Taboo," "All American Girls," and "Debbie Does Dallas."
[
Footnote 4]
Respondents argue that the decision of the New York Court of
Appeals rested on adequate and independent state grounds, namely,
provisions of the New York Constitution and various state court
decisions, and that we therefore lack jurisdiction to review that
decision. We disagree. As we explained in
Caldwell v.
Mississippi, 472 U. S. 320
(1985):
"[W]e will not assume that a state court decision rests on
adequate and independent state grounds when the"
"state court decision fairly appears to rest primarily on
federal law, or to be interwoven with the federal law, and when the
adequacy and independence of any possible state law ground is not
clear from the face of the opinion."
Id. at
472 U. S. 327,
quoting
Michigan v. Long, 463 U.
S. 1032,
463 U. S.
1040-1041 (1983). Here, the New York Court of Appeals
cited the New York Constitution only once, near the beginning of
its opinion, and in the same parenthetical also cited the Fourth
Amendment to the United States Constitution. Moreover, the Court of
Appeals repeatedly referred to the "First Amendment" and "Fourth
Amendment" during its discussion of the merits of the case,
strongly indicating that it believed that its decision was governed
by federal law. Finally, although the Court of Appeals cited
several state court decisions, the only citations appended to the
crucial language quoted in the text were to the federal decisions
in
Roaden v. Kentucky, 413 U. S. 496
(1973),
Marcus v. Search Warrant, 367 U.
S. 717 (1961),
Stanford v. Texas, 379 U.
S. 476 (1966), and
Maryland v. Macon,
472 U. S. 463
(1986). We conclude, in the absence of a "plain statement" to the
contrary, that the decision of the Court of Appeals was premised on
federal, not state, law.
[
Footnote 5]
Contrary to the position apparently taken by the Justice Court
in the instant case, we have never held that a magistrate must
personally view allegedly obscene films prior to issuing a warrant
authorizing their seizure.
See Lee Art Theatre, Inc. v.
Virginia, 392 U.S. at
392 U. S. 637. On the contrary, we think that a
reasonably specific affidavit describing the content of a film
generally provides an adequate basis for the magistrate to
determine whether there is probable cause to believe that the film
is obscene, and whether a warrant authorizing the seizure of the
film should issue.
[
Footnote 6]
Respondents contend that the seizure in the instant case was not
limited to only one copy of each film, but instead extended to all
copies of the films that the police were able to find during their
search of respondents' store. According to respondents, the seizure
had the effect of severely restricting public access to the films,
and thereby constituted a "prior restraint." Respondents therefore
argue that this case is properly governed not by
Heller v. New
York, 413 U. S. 483
(1973), but
by Roaden v. Kentucky, supra, where this Court
stated that the seizure of an allegedly obscene film, under
circumstances where the seizure "brought to an abrupt halt an
orderly and presumptively legitimate . . . exhibition" of the film,
"calls for a higher hurdle in the evaluation of reasonableness."
Id. at
413 U. S.
504.
We reject this contention. Our reference in
Roaden to a
"higher hurdle . . . of reasonableness" was not intended to
establish a "higher" standard of probable cause for the issuance of
a warrant to seize books or films, but instead related to the more
basic requirement, imposed by that decision, that the police not
rely on the "exigency" exception to the Fourth Amendment warrant
requirement, but instead obtain a warrant from a magistrate who has
"
focus[ed] searchingly on the question of obscenity.'"
Id. at 413 U. S. 506,
quoting Marcus v. Search Warrant, supra, at 367 U. S.
732.
We also note that the burden is on the defendant to make a
pretrial showing of a "substantial restraint" if he wishes to
escape the rule of
Heller, supra, that a mere seizure to
preserve evidence does not impose on the State a duty to conduct an
adversary hearing of the sort described in
Marcus, supra.
Respondents made no such pretrial showing in this case.
JUSTICE MARSHALL, with whom, JUSTICE BRENNAN and JUSTICE STEVENS
join, dissenting.
Under New York law, a film depicting specified sexual acts in a
patently offensive manner is obscene if
"the average person, applying contemporary community standards,
would find that, considered as a whole, its predominant appeal is
to the prurient interest in sex,"
and if "considered as a whole, it lacks serious literary,
artistic, political, and scientific value." N.Y. Penal Law §§
235.00(1)(a), (c) (McKinney 1980). The question before this Court
is whether three New York state courts erred in holding that the
affidavits at issue in this case failed to establish probable cause
that those standards were met. [
Footnote 2/1] The determination of what the standards
of
Page 475 U. S. 885
§ 235.00(1) mean and how they should be applied in individual
cases, of course, is, in the first instance, a matter of state law
and the rightful province of the state courts. While the majority
describes it as "clear beyond peradventure,"
ante at
475 U. S. 876,
that the affidavits set out the requisite probable cause, I do not
find that result "clear" at all, and I would not overturn the state
courts' contrary judgment.
I
The affidavits at issue in this case were first found inadequate
at a suppression hearing in the Depew Justice Court. The court, per
Justice Wick, noted that the issuing Magistrate had apparently not
himself viewed the films, and that the retired state trooper who
compiled the affidavits had "obviously paid no attention to
contemporary community standards" and "made no further
determination if the presentations had any literary, artistic,
political or scientific value." App. to Pet. for Cert. A-37.
Without stating clearly the exact basis of its decision, the court
noted that
"[t]he material contained [in the films] may be of the type
proscribed by Section 235.05 of the Penal Law, but, equally, it may
be . . . 'coarse, puerile, offensive and distasteful (and still
not) obscene under the law or proscribable.'"
Id. at A-38, quoting
People v. Stabile, 58
Misc.2d 905, 296 N.Y.S.2d 815 (N.Y.C.Crim.Ct.1969). The court
granted respondents' suppression motion.
The Erie County Court affirmed. Justice LaMendola noted the
absence of a transcript of the proceedings, if any, before the
issuing Magistrate, and declared it within the lower court's
discretion to hold that,
"under New York law, the issuing magistrate had failed to make
an adequate finding of probable cause . . . because he relied
solely on the affidavits of the police officers, without any
further investigation or viewing of the materials to be
confiscated."
App. to Pet.
Page 475 U. S. 886
for Cert. A-33. Justice LaMendola's reference to "further
investigation or viewing" makes it plain that she did not regard
the issuing Magistrate's viewing of the film as an invariable
requisite to issuance of a warrant. The affidavits in this case,
however, unsupported by further investigation, provided
insufficient basis for a warrant authorization.
The New York Court of Appeals affirmed. 65 N.Y.2d 566, 483
N.E.2d 1120 (1985). The court recognized that
"the task of the issuing magistrate 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."
Id. at 570, 483 N.E.2d at 1123. Applying that standard,
it held the affidavits insufficient.
Near the beginning of its opinion, the New York court reiterated
this Court's recent direction that the Fourth Amendment be applied
with "
scrupulous exactitude'" in cases of searches for and
seizures of presumptively protected materials, Maryland v.
Macon, 472 U. S. 463,
472 U. S. 468
(1985); see also Stanford v. Texas, 379 U.
S. 476 (1965), and noted a "higher standard" for warrant
determinations when books and films are seized, citing Roaden
v. Kentucky, 413 U. S. 496
(1973). The New York court did not go on, however, to apply any
extraordinary standard of scrutiny to the determination of probable
cause. Rather, its holding was a simple one:
"There must be enough information before [the issuing
magistrate] in one form or other . . . to enable him to judge the
obscenity of the film, not of isolated scenes from it."
65 N.Y.2d at 571, 483 N.E.2d at 1124. The affidavits, the court
explained, merely cataloged offensive sex acts depicted in the
films. Such catalogs say nothing about the "predominant appeal" of
a film, its impact "considered as a whole," or its overall literary
or artistic value.
"Undoubtedly, similar lists could readily be compiled by
excerpting descriptions of scenes from books and movies having
recognized
Page 475 U. S. 887
merit. Stanley Kubrick's 'Clockwork Orange' and Federico
Fellini's 'Satyricon' come quickly to mind."
Ibid. Because obscenity law requires examination of the
films as a whole, the court held, probable cause cannot be inferred
from the description of a few excerpted scenes.
Id. at
572, 483 N.E.2d at 1124.
II
Taken in the abstract, the New York court's reasoning is
unassailable. A mere listing of sex acts depicted in a film, or a
description of excerpted scenes, says little about the predominant
effect of the film considered as a whole. It says nothing about
whether the film, considered as a whole, has any artistic value.
And it says nothing about how the film should be regarded in light
of contemporary community standards. Such a description, then,
cannot establish even probable cause to believe that the film is
obscene. "[S]ex and obscenity are not synonymous."
Roth v.
United States, 354 U. S. 476,
354 U. S. 487
(1957). [
Footnote 2/2] A magistrate
armed only with such a description cannot "
focus searchingly on
the question of obscenity,'" as the majority, ante at
475 U. S. 874,
concedes he is obligated to do.
The majority's rejection of the New York court's reasoning
appears to derive from a largely unarticulated feeling that that
reasoning is inappropriately applied in the present case. As a
result, notwithstanding the sweeping legal principles set out in
the majority's opinion, the decision of this case ultimately rests
on the mundane application of clear law to
Page 475 U. S. 888
undisputed facts. The majority suggests that the New York court
wrongly applied its law because the affidavits described more than
excerpted scenes: they allowed the Magistrate to discern the
"
general theme and serious value'" of the films, and
established that sex acts "`pervaded'" each film. Ante at
475 U. S.
877.
The problem with the majority's approach is that it is
unsupported in the texts of the affidavits. Although a boilerplate
sentence in each affidavit invokes the "content" of the films, and
two of the affidavits conclusorily assert that certain sex acts are
depicted "throughout" the film, the affidavits do not attempt to
describe every scene in the films, or even most of the scenes.
Rather, the scenes described in the affidavits are simply those the
author chose to describe. While descriptions of sex acts pervade
the
affidavits, it is hardly clear that depictions of sex
acts pervade the
films. Similarly, while the "general
tone" of the affidavits is clear, we have little basis for a
conclusion about the "general tone" of the films.
The affidavits do not purport to be exhaustive. They can be
meaningful in considering the artistic value of the films, taken as
a whole, or the films' predominant appeal, only if one assumes that
everything, or almost everything, worth noting in the films was
incorporated into the affidavits. Nothing in the affidavits,
however, justifies that assumption. The affidavits are precisely
what the New York Court of Appeals condemned: mere listings of
selected scenes from the films that involved depictions of sex. The
films described could as well be "Last Tango in Paris."
The majority's decision upholding a warrant authorization
uninformed by any information relating to crucial elements of the
definition of obscenity is especially incongruous because the
majority overrules the institution most closely attuned to the
content of those elements: the New York courts. The New York courts
are well suited to decide whether, on the basis of "contemporary
community standards," the information
Page 475 U. S. 889
supporting a warrant authorization allows the magistrate to
focus searchingly on the question of obscenity, and to find
probable cause that given material is obscene. The New York courts
have unanimously held in this case that the affidavits were
insufficient to achieve that end. The majority's eagerness to
reverse that fact-bound determination in order to expedite an
obscenity prosecution is inappropriate, and reflects a dubious
notion of this Court's institutional role.
Cf. California v.
Carney, 471 U. S. 386, 395
(1985) (STEVENS, J., dissenting).
I dissent.
[
Footnote 2/1]
The New York Court of Appeals held that the third branch of the
statute, providing that a film, to be obscene, must depict
specified sexual acts "in a patently offensive manner, actual or
simulated," § 235.00(1)(b), was satisfied by the descriptions in
the affidavits in this case. 65 N.Y.2d 566, 570, n. 1, 483 N.E.2d
1120, 1123, n. 1 (1985).
[
Footnote 2/2]
Obscene material, considered as a whole, must not only be
without serious literary or other merit, but it must, applying
contemporary community standards, also appeal predominantly to a
"shameful or morbid" interest in sex.
See Brockett v. Spokane
Arcades, Inc., 472 U. S. 491
(1985). Indeed, three of the very films described by the affidavits
in this case have been declared outside the constitutional
boundaries of obscenity.
See United States v. Various Articles
of Obscene Merchandise, 709 F.2d 132 (CA2 1983) ("Deep
Throat," "Debbie Does Dallas," and "Little Girls Blue" not
obscene, applying community standards of Southern District of
New York).