Under authority of a warrant to search appellant's home for
evidence of his alleged bookmaking activities, officers found some
films in his bedroom. The films were projected and deemed to be
obscene. Appellant was arrested for their possession. He was
thereafter indicted, tried, and convicted for "knowingly hav[ing]
possession of . . . obscene matter" in violation of a Georgia law.
The Georgia Supreme Court affirmed, holding it
"not essential to an indictment charging one with possession of
obscene matter that it be alleged that such possession was 'with
intent to sell, expose or circulate the same.'"
Appellant contends that the Georgia obscenity statute is
unconstitutional insofar as it punishes mere private possession of
obscene matter. Georgia, relying on
Roth v. United States,
354 U. S. 476,
argues the statute's validity on the ground that "obscenity is not
within the area of constitutionally protected speech or press."
Id. at
354 U. S.
485.
Held: The First Amendment as made applicable to the
States by the Fourteenth prohibits making mere private possession
of obscene material a crime. Pp.
394 U. S.
560-568.
(a) Neither
Roth, supra, nor subsequent decisions of
the Court were made in the context of a statute punishing mere
private possession of obscene material, but involved governmental
power to prohibit or regulate certain public actions respecting
obscene matter. Pp.
394 U. S.
560-564.
(b) The Constitution protects the right to receive information
and ideas, regardless of their social worth, and to be generally
free from governmental intrusions into one's privacy and control of
one's thoughts. Pp.
394 U. S.
564-566.
(c) The State may not prohibit mere possession of obscene matter
on the ground that it may lead to antisocial conduct,
Roth,
supra, distinguished, or proscribe such possession on the
ground that it is a necessary incident to a statutory scheme
prohibiting distribution,
see Smith v. California,
361 U. S. 147. Pp.
394 U. S.
566-568.
224 Ga. 259,
161 S.E.2d
309, reversed and remanded.
Page 394 U. S. 558
MR. JUSTICE MARSHALL delivered the opinion of the Court.
An investigation of appellant's alleged bookmaking activities
led to the issuance of a search warrant for appellant's home. Under
authority of this warrant, federal and state agents secured
entrance. They found very little evidence of bookmaking activity,
but, while looking through a desk drawer in an upstairs bedroom,
one of the federal agents, accompanied by a state officer, found
three reels of eight-millimeter film. Using a projector and screen
found in an upstairs living room, they viewed the films. The state
officer concluded that they were obscene and seized them. Since a
further examination of the bedroom indicated that appellant
occupied it, he was charged with possession of obscene matter and
placed under arrest. He was later indicted for "knowingly hav[ing]
possession of . . . obscene matter" in violation of Georgia law.
[
Footnote 1] Appellant
Page 394 U. S. 559
was tried before a jury and convicted. The Supreme Court of
Georgia affirmed.
Stanley v. State, 224 Ga. 259,
161 S.E.2d 309
(1968). We noted probable jurisdiction of an appeal brought under
28 U.S.C. § 1257(2). 393 U.S. 819 (1968).
Appellant raises several challenges to the validity of his
conviction. [
Footnote 2] We
find it necessary to consider only one. Appellant argues here, and
argued below, that the Georgia obscenity statute, insofar as it
punishes mere private possession of obscene matter, violates the
First Amendment, as made applicable to the States by the Fourteenth
Amendment. For reasons set forth below, we agree that the mere
private possession of obscene matter cannot constitutionally be
made a crime.
The court below saw no valid constitutional objection to the
Georgia statute, even though it extends further than the typical
statute forbidding commercial sales of obscene material. It held
that
"[i]t is not essential to an indictment charging one with
possession of obscene matter that it be alleged that such
possession was 'with intent to sell, expose or circulate the
same.'"
Stanley v. State, supra, at 261, 161 S.E.2d at 311. The
State and appellant both agree that the question here before us is
whether "a statute imposing criminal sanctions upon the mere
[knowing] possession of obscene matter" is constitutional. In this
context, Georgia concedes that the present case appears to be one
of "first
Page 394 U. S. 560
impression . . . on this exact point," [
Footnote 3] but contends that, since "obscenity is not
within the area of constitutionally protected speech or press,"
Roth v. United States, 354 U. S. 476,
354 U. S. 485
(1957), the States are free, subject to the limits of other
provisions of the Constitution,
see, e.g., Ginsberg v. New
York, 390 U. S. 629,
390 U. S.
637-645 (1968), to deal with it any way deemed
necessary, just as they may deal with possession of other things
thought to be detrimental to the welfare of their citizens. If the
State can protect the body of a citizen, may it not, argues
Georgia, protect his mind?
It is true that
Roth does declare, seemingly without
qualification, that obscenity is not protected by the First
Amendment. That statement has been repeated in various forms in
subsequent cases.
See, e.g., Smith v. California,
361 U. S. 147,
361 U. S. 152
(1959);
Jacobellis v. Ohio, 378 U.
S. 184,
378 U. S.
186-187 (1964) (opinion of BRENNAN, J.);
Ginsberg v.
New York, supra, at
390 U. S. 635.
However, neither
Roth nor any subsequent decision of this
Court dealt with the precise problem involved in the present case.
Roth was convicted of mailing obscene circulars and
advertising, and an obscene book, in violation of a federal
obscenity statute. [
Footnote 4]
The defendant in a companion case,
Alberts v. California,
354 U. S. 476
(1957), was convicted of "lewdly keeping for sale obscene and
indecent books, and [of] writing, composing and publishing an
obscene advertisement of them. . . ."
Id. at
354 U. S. 481.
None of the statements cited by the Court in
Page 394 U. S. 561
Roth for the proposition that "this Court has always
assumed that obscenity is not protected by the freedoms of speech
and press" were made in the context of a statute punishing mere
private possession of obscene material; the cases cited deal for
the most part with use of the mails to distribute objectionable
material or with some form of public distribution or dissemination.
[
Footnote 5] Moreover, none of
this Court's decisions subsequent to
Roth involved
prosecution for private possession of obscene materials. Those
cases dealt with the power of the State and Federal Governments to
prohibit or regulate certain public actions taken or intended to be
taken with respect to obscene matter. [
Footnote 6] Indeed, with one
Page 394 U. S. 562
exception, we have been unable to discover any case in which the
issue in the present case has been fully considered. [
Footnote 7]
Page 394 U. S. 563
In this context, we do not believe that this case can be decided
simply by citing
Roth. Roth and its progeny
certainly do mean that the First and Fourteenth Amendments
recognize a valid governmental interest in dealing with the problem
of obscenity. But the assertion of that interest cannot, in every
context, be insulated from all constitutional protections. Neither
Roth nor any other decision of this Court reaches that
far. As the Court said in
Roth itself,
"[c]easeless vigilance is the watchword to prevent . . . erosion
[of First Amendment rights] by Congress or by the States. The door
barring federal and state intrusion into this area cannot be left
ajar; it must be kept tightly closed and opened only the slightest
crack necessary to prevent encroachment upon more important
interests."
354 U.S. at
354 U. S. 488.
Roth and the cases following it discerned such an
"important interest" in the regulation of commercial distribution
of
Page 394 U. S. 564
obscene material. That holding cannot foreclose an examination
of the constitutional implications of a statute forbidding mere
private possession of such material.
It is now well established that the Constitution protects the
right to receive information and ideas. "This freedom [of speech
and press] . . . necessarily protects the right to receive. . . ."
Martin v. City of Struthers, 319 U.
S. 141,
319 U. S. 143
(1943);
see Griswold v. Connecticut, 381 U.
S. 479,
381 U. S. 482
(1965);
Lamont v. Postmaster General, 381 U.
S. 301,
381 U. S.
307-308 (1965) (BRENNAN, J., concurring);
cf. Pierce
v. Society of Sisters, 268 U. S. 510
(1925). This right to receive information and ideas, regardless of
their social worth,
see Winters v. New York, 333 U.
S. 507,
333 U. S. 510
(1948), is fundamental to our free society. Moreover, in the
context of this case -- a prosecution for mere possession of
printed or filmed matter in the privacy of a person's own home --
that right takes on an added dimension. For also fundamental is the
right to be free, except in very limited circumstances, from
unwanted governmental intrusions into one's privacy.
"The makers of our Constitution undertook to secure conditions
favorable to the pursuit of happiness. They recognized the
significance of man's spiritual nature, of his feelings and of his
intellect. They knew that only a part of the pain, pleasure and
satisfactions of life are to be found in material things. They
sought to protect Americans in their beliefs, their thoughts, their
emotions and their sensations. They conferred, as against the
Government, the right to be let alone -- the most comprehensive of
rights and the right most valued by civilized man."
Olmstead v. United States, 277 U.
S. 438,
277 U. S. 478
(1928) (Brandeis, J., dissenting).
See Griswold v. Connecticut,
supra; cf. NAACP v. Alabama, 357 U. S. 449,
357 U. S. 462
(1958).
Page 394 U. S. 565
These are the rights that appellant is asserting in the case
before us. He is asserting the right to read or observe what he
pleases -- the right to satisfy his intellectual and emotional
needs in the privacy of his own home. He is asserting the right to
be free from state inquiry into the contents of his library.
Georgia contends that appellant does not have these rights, that
there are certain types of materials that the individual may not
read or even possess. Georgia justifies this assertion by arguing
that the films in the present case are obscene. But we think that
mere categorization of these films as "obscene" is insufficient
justification for such a drastic invasion of personal liberties
guaranteed by the First and Fourteenth Amendments. Whatever may be
the justifications for other statutes regulating obscenity, we do
not think they reach into the privacy of one's own home. If the
First Amendment means anything, it means that a State has no
business telling a man, sitting alone in his own house, what books
he may read or what films he may watch. Our whole constitutional
heritage rebels at the thought of giving government the power to
control men's minds.
And yet, in the face of these traditional notions of individual
liberty, Georgia asserts the right to protect the individual's mind
from the effects of obscenity. We are not certain that this
argument amounts to anything more than the assertion that the State
has the right to control the moral content of a person's thoughts.
[
Footnote 8] To
Page 394 U. S. 566
some, this may be a noble purpose, but it is wholly inconsistent
with the philosophy of the First Amendment. As the Court said in
Kingsley International Pictures Corp. v. Regents,
360 U. S. 684,
360 U. S.
688-689 (1959),
"[t]his argument misconceives what it is that the Constitution
protects. Its guarantee is not confined to the expression of ideas
that are conventional or shared by a majority. . . . And, in the
realm of ideas, it protects expression which is eloquent no less
than that which is unconvincing."
Cf. Joseph Burstyn, Inc. v. Wilson, 343 U.
S. 495 (1952). Nor is it relevant that obscene materials
in general, or the particular films before the Court, are arguably
devoid of any ideological content. The line between the
transmission of ideas and mere entertainment is much too elusive
for this Court to draw, if indeed such a line can be drawn at all.
See Winters v. New York, supra, at
333 U. S. 510.
Whatever the power of the state to control public dissemination of
ideas inimical to the public morality, it cannot constitutionally
premise legislation on the desirability of controlling a person's
private thoughts.
Perhaps recognizing this, Georgia asserts that exposure to
obscene materials may lead to deviant sexual behavior or crimes of
sexual violence. There appears to be little empirical basis for
that assertion. [
Footnote 9]
But, more important, if the State is only concerned about printed
or filmed materials inducing antisocial conduct, we believe that,
in the context of private consumption of ideas and information we
should adhere to the view that "[a]mong free men, the deterrents
ordinarily to be
Page 394 U. S. 567
applied to prevent crime are education and punishment for
violations of the law. . . ."
Whitney v. California,
274 U. S. 357,
274 U. S. 378
(1927) (Brandeis, J., concurring).
See Emerson, Toward a
General Theory of the First Amendment, 72 Yale L.J. 877, 938
(1963). Given the present state of knowledge, the State may no more
prohibit mere possession of obscene matter on the ground that it
may lead to antisocial conduct than it may prohibit possession of
chemistry books on the ground that they may lead to the manufacture
of homemade spirits.
It is true that, in
Roth, this Court rejected the
necessity of proving that exposure to obscene material would create
a clear and present danger of antisocial conduct or would probably
induce its recipients to such conduct. 354 U.S. at
354 U. S.
486-487. But that case dealt with public distribution of
obscene materials and such distribution is subject to different
objections. For example, there is always the danger that obscene
material might fall into the hands of children,
see Ginsberg v.
New York, supra, or that it might intrude upon the
sensibilities or privacy of the general public. [
Footnote 10]
See Redrup v. New
York, 386 U. S. 767,
386 U. S. 769
(1967). No such dangers are present in this case.
Finally, we are faced with the argument that prohibition of
possession of obscene materials is a necessary incident to
statutory schemes prohibiting distribution. That argument is based
on alleged difficulties of proving an intent to distribute or in
producing evidence of actual distribution. We are not convinced
that such difficulties
Page 394 U. S. 568
exist, but even if they did we do not think that they would
justify infringement of the individual's right to read or observe
what he pleases. Because that right is so fundamental to our scheme
of individual liberty, its restriction may not be justified by the
need to ease the administration of otherwise valid criminal laws.
See Smith v. California, 361 U. S. 147
(1959).
We hold that the First and Fourteenth Amendments prohibit making
mere private possession of obscene material a crime. [
Footnote 11]
Roth and the
cases following that decision are not impaired by today's holding.
As we have said, the States retain broad power to regulate
obscenity; that power simply does not extend to mere possession by
the individual in the privacy of his own home. Accordingly, the
judgment of the court below is reversed and the case is remanded
for proceedings not inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
"Any person who shall knowingly bring or cause to be brought
into this State for sale or exhibition, or who shall knowingly sell
or offer to sell, or who shall knowingly lend or give away or offer
to lend or give away, or who shall knowingly have possession of, or
who shall knowingly exhibit or transmit to another, any obscene
matter, or who shall knowingly advertise for sale by any form of
notice, printed, written, or verbal, any obscene matter, or who
shall knowingly manufacture, draw, duplicate or print any obscene
matter with intent to sell, expose or circulate the same, shall, if
such person has knowledge or reasonably should know of the obscene
nature of such matter, be guilty of a felony, and, upon conviction
thereof, shall be punished by confinement in the penitentiary for
not less than one year nor more than five years: Provided, however,
in the event the jury so recommends, such person may be punished as
for a misdemeanor. As used herein, a matter is obscene if,
considered as a whole, applying contemporary community standards,
its predominant appeal is to prurient interest,
i.e., a
shameful or morbid interest in nudity, sex or excretion."
Ga.Code Ann. § 26-6301 (Supp. 1968).
[
Footnote 2]
Appellant does not argue that the films are not obscene. For the
purpose of this opinion, we assume that they are obscene under any
of the tests advanced by members of this Court.
See Redrup v.
New York, 386 U. S. 767
(1967).
[
Footnote 3]
The issue was before the Court in
Mapp v. Ohio,
367 U. S. 643
(1961), but that case was decided on other grounds. MR. JUSTICE
STEWART, although disagreeing with the majority opinion in
Mapp, would have reversed the judgment in that case on the
ground that the Ohio statute proscribing mere possession of obscene
material was "not
consistent with the rights of free thought
and expression assured against state action by the Fourteenth
Amendment.'" Id. at 367 U. S.
672.
[
Footnote 4]
18 U.S.C. § 1461.
[
Footnote 5]
Ex parte Jackson, 96 U. S. 727,
96 U. S.
736-737 (1878) (use of the mails);
United States v.
Chase, 135 U. S. 255,
135 U. S. 261
(1890) (use of the mails);
Robertson v. Baldwin,
165 U. S. 275,
165 U. S. 281
(1897) (publication);
Public Clearing House v. Coyne,
194 U. S. 497,
194 U. S. 508
(1904) (use of the mails);
Hoke v. United States,
227 U. S. 308,
227 U. S. 322
(1913) (use of interstate facilities);
Near v. Minnesota,
283 U. S. 697,
283 U. S. 716
(1931) (publication);
Chaplinsky v. New Hampshire,
315 U. S. 568,
315 U. S.
571-572 (1942) (utterances);
Hannegan v. Esquire,
Inc., 327 U. S. 146,
327 U. S. 158
(1046) (use of the mails);
Winters v. New York,
333 U. S. 507,
333 U. S. 510
(1948) (possession with intent to sell);
Beauharnais v.
Illinois, 343 U. S. 250,
343 U. S. 266
(1952) (libel).
[
Footnote 6]
Many of the cases involved prosecutions for sale or distribution
of obscene materials or possession with intent to sell or
distribute.
See Redrup v. New York, 386 U.
S. 767 (1967);
Mishkin v. New York,
383 U. S. 502
(1966);
Ginzburg v. United States, 383 U.
S. 463 (1966);
Jacobellis v. Ohio, 378 U.
S. 184 (1964);
Smith v. California,
361 U. S. 147
(1959). Our most recent decision involved a prosecution for sale of
obscene material to children.
Ginsberg v. New York,
390 U. S. 629
(1968);
cf. Interstate Circuit, Inc. v. City of Dallas,
390 U. S. 676
(1968). Other cases involved federal or state statutory procedures
for preventing the distribution or mailing of obscene material, or
procedures for pre-distribution approval.
See Freedman v.
Maryland, 380 U. S. 51
(1965);
Bantam Books, Inc. v. Sullivan, 372 U. S.
58 (1963);
Manual Enterprises, Inc. v. Day,
370 U. S. 478
(1962). Still another case dealt with an attempt to seize obscene
material "kept for the purpose of being sold, published, exhibited
. . . or otherwise distributed or circulated. . . ."
Marcus v.
Search Warrant, 367 U. S. 717,
367 U. S. 719
(1961);
see also A Quantity of Books v. Kansas,
378 U. S. 205
(1964).
Memoirs v. Massachusetts, 383 U.
S. 413 (1966), was a proceeding in equity against a.
book. However, possession of a book determined to be obscene in
such a proceeding was made criminal only when "for the purpose of
sale, loan or distribution."
Id. at
383 U. S.
422.
[
Footnote 7]
The Supreme Court of Ohio considered the issue in
State v.
Mapp, 170 Ohio St. 427, 166 N.E.2d 387 (1960). Four of the
seven judges of that court felt that criminal prosecution for mere
private possession of obscene materials was prohibited by the
Constitution. However, Ohio law required the concurrence of "all
but one of the judges" to declare a state law unconstitutional. The
view of the "dissenting" judges was expressed by Judge Herbert:
"I cannot agree that mere private possession of . . . [obscene]
literature by an adult should constitute a crime. The right of the
individual to read, to believe or disbelieve, and to think without
governmental supervision is one of our basic liberties, but to
dictate to the mature adult what books he may have in his own
private library seems to the writer to be a clear infringement of
his constitutional rights as an individual."
170 Ohio St., at 437, 166 N.E.2d at 393.
Shortly thereafter, the Supreme Court of Ohio interpreted the
Ohio statute to require proof of "possession and control for the
purpose of circulation or exhibition."
State v.
Jacobellis, 173 Ohio St. 22, 27-28, 179 N.E.2d 777, 781
(1962),
rev'd on other grounds, 378 U. S. 378 U.S.
184 (1964). The interpretation was designed to avoid the
constitutional problem posed by the "dissenters" in
Mapp.
See State v. Ross, 12 Ohio St.2d 37, 231 N.E.2d 299
(1967).
Other cases dealing with nonpublic distribution of obscene
material or with legitimate uses of obscene material have expressed
similar reluctance to make such activity criminal, albeit largely
on statutory grounds. In
United States v. Chase,
135 U. S. 255
(1890), the Court held that federal law did not make criminal the
mailing of a private sealed obscene letter on the ground that the
law's purpose was to purge the mails of obscene matter "as far as
was consistent with the rights reserved to the people, and with a
due regard to the security of private correspondence. . . ." 135
U.S. at
135 U. S. 261.
The law was later amended to include letters and was sustained in
that form.
Andrews v. United States, 162 U.
S. 420 (1896). In
United States v. 31
Photographs, 156 F.
Supp. 350 (D.C.S.D.N.Y.1957), the court denied an attempt by
the Government to confiscate certain materials sought to be
imported into the United States by the Institute for Sex Research,
Inc., at Indiana University. The court found, applying the
Roth formulation, that the materials would not appeal to
the "prurient interest" of those seeking to import and utilize the
materials. Thus, the statute permitting seizure of "obscene"
materials was not applicable. The court found it unnecessary to
reach the constitutional questions presented by the claimant, but
did note its belief that
"the statement . . . [in
Roth] concerning the rejection
of obscenity must be interpreted in the light of the widespread
distribution of the material in
Roth."
156 F. Supp. at 360, n. 40.
See also Redmond v. United
States, 384 U. S. 264
(1966), where this Court granted the Solicitor General's motion to
vacate and remand with instructions to dismiss an information
charging a violation of a federal obscenity statute in a case where
a husband and wife mailed undeveloped films of each other posing in
the nude to an out-of-state firm for developing.
But see
Ackerman v. United States, 293 F.2d 449 (C.A. 9th
Cir.1961).
[
Footnote 8]
"Communities believe, and act on the belief, that obscenity is
immoral, is wrong for the individual, and has no place in a decent
society. They believe, too, that adults as well as children are
corruptible in morals and character, and that obscenity is a source
of corruption that should be eliminated. Obscenity is not
suppressed primarily for the protection of others. Much of it is
suppressed for the purity of the community and for the salvation
and welfare of the 'consumer.' Obscenity, at bottom, is not crime.
Obscenity is sin."
Henkin, Morals and the Constitution: The Sin of Obscenity. 63
Col.L.Rev. 391, 395 (1963).
[
Footnote 9]
See, e.g., Cairns, Paul, & Wishner, Sex Censorship:
The Assumptions of Anti-Obscenity Laws and the Empirical Evidence,
46 Minn.L.Rev. 1009 (1962);
see also M. Jahoda, The Impact
of Literature: A Psychological Discussion of Some Assumptions in
the Censorship Debate (1954), summarized in the concurring opinion
of Judge Frank in
United States v. Roth, 237 F.2d 796,
814-816 (C.A.2d Cir.1956).
[
Footnote 10]
The Model Penal Code provisions dealing with obscene materials
are limited to cases of commercial dissemination. Model Penal Code
§ 251.4 (Prop. Official Draft 1962);
see also Model Penal
Code § 207.10 and comment 4 (Tent.Draft No. 6, 1957); H. Packer,
The Limits of the Criminal Sanction 316-328 (1968); Schwartz,
Morals Offenses and the Model Penal Code, 63 Col.L.Rev. 669
(1963).
[
Footnote 11]
What we have said in no way infringes upon the power of the
State or Federal Government to make possession of other items, such
as narcotics, firearms, or stolen goods, a crime. Our holding in
the present case turns upon the Georgia statute's infringement of
fundamental liberties protected by the First and Fourteenth
Amendments. No First Amendment rights are involved in most statutes
making mere possession criminal.
Nor do we mean to express any opinion on statutes making
criminal possession of other types of printed, filmed, or recorded
materials.
See, e.g., 18 U.S.C. § 793(d), which makes
criminal the otherwise lawful possession of materials which "the
possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation. . . ." In
such cases, compelling reasons may exist for overriding the right
of the individual to possess those materials.
MR. JUSTICE BLACK, concurring.
I agree with the Court that the mere possession of reading
matter or movie films, whether labeled obscene or not, cannot be
made a crime by a State without violating
Page 394 U. S. 569
the First Amendment, made applicable to the States by the
Fourteenth. My reasons for this belief have been set out in many of
my prior opinions, as for example,
Smith v. California,
361 U. S. 147,
361 U. S. 155
(concurring opinion), and
Ginzburg v. United States,
383 U. S. 463,
383 U. S. 476
(dissenting opinion).
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE WHITE join, concurring in the result.
Before the commencement of the trial in this case, the appellant
filed a motion to suppress the films as evidence upon the ground
that they had been seized in violation of the Fourth and Fourteenth
Amendments. The motion was denied, and the films were admitted in
evidence at the trial. In affirming the appellant's conviction, the
Georgia Supreme Court specifically determined that the films had
been lawfully seized. The appellant correctly contends that this
determination was clearly wrong under established principles of
constitutional law. But the Court today disregards this preliminary
issue in its hurry to move on to newer constitutional frontiers. I
cannot so readily overlook the serious inroads upon Fourth
Amendment guarantees countenanced in this case by the Georgia
courts.
The Fourth Amendment provides that
"no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."
The purpose of these clear and precise words was to guarantee to
the people of this Nation that they should forever be secure from
the general searches and unrestrained seizures that had been a
hated hallmark of colonial rule under the notorious writs of
assistance of the British Crown.
See Stanford v. Texas,
379 U. S. 476,
379 U. S. 481.
This most basic of Fourth Amendment guarantees was frustrated
Page 394 U. S. 570
in the present case, I think, in a manner made the more
pernicious by its very subtlety. For what happened here was that a
search that began as perfectly lawful became the occasion for an
unwarranted and unconstitutional seizure of the films.
The state and federal officers gained admission to the
appellant's house under the authority of a search warrant issued by
a United States Commissioner. The warrant described "the place to
be searched" with particularity. [
Footnote 2/1] With like particularity, it described the
"things to be seized" -- equipment, records, and other material
used in or derived from an illegal wagering business. [
Footnote 2/2] And the warrant was issued
only after the Commissioner had been apprised of more than adequate
probable cause to issue it. [
Footnote
2/3]
There can be no doubt, therefore, that the agents were lawfully
present in the appellant's house, lawfully authorized to search for
any and all of the items specified in the warrant, and lawfully
empowered to seize any such
Page 394 U. S. 571
items they might find. [
Footnote
2/4] It follows, therefore, that the agents were acting within
the authority of the warrant when they proceeded to the appellant's
upstairs bedroom and pulled open the drawers of his desk. But when
they found in one of those drawers not gambling material but moving
picture films, the warrant gave them no authority to seize the
films.
The controlling constitutional principle was stated in two
sentences by this Court more than 40 years ago:
"The requirement that warrants shall particularly describe the
things to be seized makes general searches under them impossible
and prevents the seizure of one thing under a warrant describing
another. As to what is to be taken, nothing is left to the
discretion of the officer executing the warrant."
Marron v. United States, 275 U.
S. 192,
275 U. S.
196.
This is not a case where agents in the course of a lawful search
came upon contraband, criminal activity, or criminal evidence
[
Footnote 2/5] in plain view. For
the record makes clear that the contents of the films could not be
determined by mere inspection. And this is not a case that presents
any questions as to the permissible scope of a search made incident
to a lawful arrest. For the appellant had not been arrested when
the agents found the films. After finding them, the agents spent
some 50 minutes exhibiting them by means of the appellant's
projector in another upstairs room. Only then did the agents return
downstairs and arrest the appellant.
Even in the much-criticized case of
United States v.
Rabinowitz, 339 U. S. 56, the
Court emphasized that "exploratory
Page 394 U. S. 572
searches . . . cannot be undertaken by officers with or without
a warrant."
Id. at
339 U. S. 62.
This record presents a bald violation of that basic constitutional
rule. To condone what happened here is to invite a government
official to use a seemingly precise and legal warrant only as a
ticket to get into a man's home, and, once inside, to launch forth
upon unconfined searches and indiscriminate seizures as if armed
with all the unbridled and illegal power of a general warrant.
Because the films were seized in violation of the Fourth and
Fourteenth Amendments, they were inadmissible in evidence at the
appellant's trial.
Mapp v. Ohio, 367 U.
S. 643. Accordingly, the judgment of conviction must be
reversed.
[
Footnote 2/1]
"[T]he premises known as 280 Springside Drive, S.E. two story
residence with an annex on the main floor constructed of brick and
frame, in Atlanta, Fulton County, Georgia, in the Northern District
of Georgia. . . ."
[
Footnote 2/2]
"[B]ookmaking records, wagering paraphernalia consisting of bet
slips, account sheets, recap sheets, collection sheets, adding
machines, money used in or derived from the wagering business,
records of purchases, records of real estate and bank transactions,
the money for which was derived from the wagering business, and any
other property used in the wagering business, which are being used
and/or have been used in the operation of a bookmaking business or
represent the fruits of a bookmaking business being operated in
violation of Sections 4411, 4412 and 7203 IRC of 1954."
[
Footnote 2/3]
Before the Commissioner were no less than four lengthy and
detailed affidavits, setting out the grounds for the affiants'
reasonable belief that the appellant was engaged in an illegal
gambling enterprise, and that the paraphernalia of his trade were
concealed in his house.
[
Footnote 2/4]
The fact that almost no gambling material was actually found has
no bearing, of course, upon the validity of the search. The
constitutionality of a search depends in no measure upon what it
brings to light.
Byars v. United States, 273 U. S.
28,
273 U. S.
29.
[
Footnote 2/5]
See Warden v. Hayden, 387 U. S. 294.