A county sheriff viewed a sexually explicit film at a local
drive-in theater. At the conclusion of the showing, he arrested
petitioner, the theater manager, for exhibiting an obscene film in
violation of Kentucky law, and seized, without a warrant, one copy
of the film for use as evidence. There was no prior judicial
determination of obscenity. Petitioner's motion to suppress the
film as evidence on the ground of illegal seizure was denied, and
he was convicted. The Kentucky Court of Appeals affirmed, holding
that the concededly obscene film was properly seized incident to a
lawful arrest.
Held: The seizure by the sheriff, without the authority
of a constitutionally sufficient warrant, was unreasonable under
Fourth and Fourteenth Amendment standards. The seizure is not
unreasonable simply because it would have been easy to secure a
warrant, but rather because prior restraint of the right of
expression, whether by books or films, calls for a higher hurdle in
the evaluation of reasonableness.
Lee Art Theatre v.
Virginia, 392 U. S. 636;
Marcus v. Search Warrant, 367 U.
S. 717. This case does not present an exigent
circumstance in which police action must be "now or never" to
preserve the evidence of the crime, and where it may be reasonable
to permit action without prior judicial approval. Pp.
413 U. S.
501-506.
473 S.W.2d 814, reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J.,
filed an opinion concurring in the judgment in which STEWART and
MARSHALL, JJ., joined,
post, p.
413 U. S. 507.
DOUGLAS, J., filed a dissenting opinion,
ante, p.
413 U. S.
494.
Page 413 U. S. 497
MR. CHIEF JUSTICE BURGER delivered the opinion of of the
Court.
The question presented in this case is whether the seizure of
allegedly obscene material, contemporaneous with and as an incident
to an arrest for the public exhibition of such material in a
commercial theater, may be accomplished without a warrant.
On September 29, 1970, the sheriff of Pulaski County, Kentucky,
accompanied by the district prosecutor, purchased tickets to a
local drive-in theater. There, the sheriff observed, in its
entirety, a film called "Cindy and Donna" and concluded that it was
obscene and that its exhibition was in violation of a state
statute. A substantial part of the film was also observed by a
deputy sheriff from a vantage point on the road outside the
theater. Since the petitioner conceded the obscenity of the film at
trial, that issue is not before us for decision. [
Footnote 1]
The sheriff, at the conclusion of the film, proceeded to the
projection booth, where he arrested petitioner, the manager of the
theater, on the charge of exhibiting an obscene film to the public
contrary to Ky.Rev.Stat. § 436.101 (1973). [
Footnote 2] Concurrent with the arrest, the sheriff
Page 413 U. S. 498
seized one copy of the film for use as evidence. It is
uncontested: (a) that the sheriff had no warrant when he made the
arrest and seizure, (b) that there had been no
Page 413 U. S. 499
prior determination by a judicial officer on the question of
obscenity, and (c) that the arrest was based solely on the
sheriff's observing the exhibition of the film.
On September 30, 1970, the day following the arrest of
petitioner and the seizure of the film, the Grand Jury of Pulaski
County heard testimony concerning the scenes and content of the
film and returned an indictment charging petitioner with exhibiting
an obscene film in violation of Ky.Rev.Stat. § 436.101. On October
3, 1970, petitioner entered a plea of not guilty in the Pulaski
Circuit Court, and the case was set for trial. On October 12, 1970,
petitioner filed a motion to suppress the film as evidence and to
dismiss the indictment. The motion was predicated upon the ground
that the film was "improperly, unlawfully and illegally seized,
contrary to . . . the laws of the land." Four days later, on
October 16, 1970, the Pulaski Circuit Court heard argument at an
adversary hearing on petitioner's motion. The motion was
denied.
Petitioner's trial began on October 20, 1970. The arresting
sheriff and one of his deputies were the only witnesses for the
prosecution. The sheriff testified that the film displayed nudity
and "intimate love scenes." The sheriff further testified that,
upon viewing the film, he determined that it was obscene and that
its exhibition
Page 413 U. S. 500
violated state law. He therefore arrested petitioner. Together
with the testimony of the sheriff, the film itself was introduced
in evidence. Petitioner's motion to suppress the film was renewed,
and again overruled. The sheriff's deputy took the stand and
testified that he had viewed the final 30 minutes of the film from
a vantage point on a public road outside the theater. Following
this testimony, the jury was permitted to see the film.
Petitioner testified in his own behalf. He stated that, to his
knowledge, no juveniles had been admitted to see the film, and that
he had received no complaints about the film until it was seized by
the sheriff. At the close of his testimony, the jury found
petitioner guilty as charged. The jury rendered both a general
verdict of guilty and a special verdict that the film was obscene,
as provided by Ky.Rev.Stat. § 436.101(8).
On appeal, the Court of Appeals of Kentucky affirmed
petitioner's conviction. The Court of Appeals first emphasized
that
"[i]t was conceded by [petitioner's] counsel in closing argument
to the jury that the film is obscene. No issue is presented on
appeal as to the obscenity of the material."
473 S.W.2d 814, 815 (1971). The Court of Appeals then held that
the film was properly seized incident to a lawful arrest,
distinguishing the holdings of this Court in
A Quantity of
Books v. Kansas, 378 U. S. 205
(1964), and
Marcus v. Search Warrant, 367 U.
S. 717 (1961), on the ground that those decisions
related to seizure of allegedly obscene materials "for destruction
or suppression, not to seizures incident to an arrest for
possessing, selling, or exhibiting a specific item." 473 S.W.2d at
815. It also distinguished
Lee Art Theatre v. Virginia,
392 U. S. 636
(1968), on the grounds that there, film "had been seized pursuant
to a [defective] search warrant, not incident to an arrest." 473
S.W.2d at 816. The Court of Appeals relied on a decision of a
federal three-judge
Page 413 U. S. 501
court in
Hosey v. City of Jackson, 309 F.
Supp. 527 (SD Miss.1970), which concluded that:
"[S]eizure of an allegedly obscene film as an incident to lawful
arrests for a crime committed in the presence of the arresting
officers,
i.e., the public showing of such film, does not
exceed constitutional bounds in the absence of a prior judicial
hearing on the question of its obscenity."
Id. at 533. The Court of Appeals specifically declined
to follow a decision by another federal three-judge court in
Ledesma v. Perez, 304 F.
Supp. 662 (ED La.1969), which held unconstitutional the seizure
of allegedly obscene material incident to an arrest, but without a
warrant or a prior adversary hearing. [
Footnote 3]
I
The Fourth Amendment proscription against "unreasonable . . .
seizures," applicable to the States through the Fourteenth
Amendment, must not be read in a vacuum. A seizure reasonable as to
one type of material in one setting may be unreasonable in a
different setting or with respect to another kind of material.
Cf. Coolidge v. New Hampshire, 403 U.
S. 443,
403 U. S.
471-472 (1971);
id. at
403 U. S.
509-510 (Black, J., concurring and dissenting);
id. at
403 U. S.
512-513 (WHITE, J., concurring and dissenting). The
question to be resolved is whether the seizure of the film without
a warrant was unreasonable under Fourth Amendment standards and, if
so,
Page 413 U. S. 502
whether the film was therefore inadmissible at the trial. The
seizure of instruments of a crime, such as a pistol or a knife, or
"contraband or stole goods or objects dangerous in themselves,"
id. at
403 U. S. 472,
are to be distinguished from quantities of books and movie films
when a court appraises the reasonableness of the seizure under
Fourth or Fourteenth Amendment standards.
Marcus v. Search Warrant, supra, held that a warrant
for the seizure of allegedly obscene books could not be issued on
the conclusory opinion of a police officer that the books sought to
be seized were obscene. Such a warrant lacked the safeguards
demanded
"to assure nonobscene material the constitutional protection to
which it is entitled. . . . [T]he warrants issued on the strength
of the conclusory assertions of a single police officer, without
any scrutiny by the judge of any materials considered by the
complainant to be obscene."
367 U.S. at
367 U. S.
731-732. There had been "no step in the procedure before
seizure designed to focus searchingly on the question of
obscenity."
Id. at
367 U. S.
732.
The sense of this holding was reaffirmed in
A Quantity of
Books v. Kansas, supra, where the Court found unconstitutional
a "massive seizure" of books from a commercial bookstore for the
purpose of destroying the books as contraband. The result was
premised on the lack of an adversary hearing prior to seizure, and
the Court did not find it necessary to reach the claim that the
seizure violated Fourth Amendment standards. 378 U.S. at
378 U. S. 210
n. 2. However, the Court emphasized:
"It is no answer to say that obscene books are contraband, and
that consequently the standards governing searches and seizures of
allegedly obscene books should not differ from those applied with
respect to narcotics, gambling paraphernalia and
Page 413 U. S. 503
other contraband. We rejected that proposition in
Marcus."
Id. at
378 U. S.
211-212.
Lee Art Theatre v. Virginia, supra, was to the same
effect with regard to seizure of a film from a commercial theater
regularly open to the public. There, a warrant for the seizure of
the film was issued on the basis of a police officer's affidavit
giving the titles of the film and asserting in conclusory fashion
that he had personally viewed the films and considered them
obscene. The films were seized pursuant to the warrant, and
introduced into evidence in a criminal case against the exhibitor.
Conviction ensued. On review, the Court held that "[t]he admission
of the films in evidence requires reversal of petitioner's
conviction" because
"[t]he procedure under which the warrant issued solely upon the
conclusory assertions of the police officer without any inquiry by
the justice of the peace into the factual basis for the officer's
conclusions was not a procedure 'designed to focus searchingly on
the question of obscenity,'
id., [
Marcus v. Search
Warrant, supra,] at
367 U. S. 732, and therefore
fell short of constitutional requirements demanding necessary
sensitivity to freedom of expression."
392 U.S. at
392 U. S. 637.
No mention was made in the brief per curiam
Lee Art
Theatre opinion as to whether or not the seizure was incident
to an arrest. The Court relied on
Marcus and
A
Quantity of Books.
The common thread of
Marcus, A Quantity of Books, and
Lee Art Theatre is to be found in the nature of the
materials seized and the setting in which they were taken.
See
Stanford v. Texas, 379 U. S. 476,
379 U. S. 486
(1965). [
Footnote 4]
Page 413 U. S. 504
In each case the material seized fell arguably within First
Amendment protection, and the taking brought to an abrupt halt an
orderly and presumptively legitimate distribution or exhibition.
Seizing a film then being exhibited to the general public presents
essentially the same restraint on expression as the seizure of all
the books in a bookstore. Such precipitate action by a police
officer, without the authority of a constitutionally sufficient
warrant, is plainly a form of prior restraint and is, in those
circumstances, unreasonable under Fourth Amendment standards. The
seizure is unreasonable not simply because it would have been easy
to secure a warrant, but rather because prior restraint of the
right of expression, whether by books or films, calls for a higher
hurdle in the evaluation of reasonableness. The setting of the
bookstore or the commercial theater, each presumptively under the
protection of the First Amendment, invokes such Fourth Amendment
warrant requirements because we examine what is "unreasonable" in
the light of the values of freedom of expression. [
Footnote 5] As we stated in
Stanford v.
Texas, supra:
"In short, . . . the constitutional requirement that warrants
must particularly describe the 'things to be seized' is to be
accorded the most scrupulous exactitude when the 'things' are
books, and the basis for their seizure is the ideas which they
contain.
See Marcus v. Search Warrant, 367 U. S.
717;
A Quantity of Books v. Kansas,
378 U. S.
205. No less a standard could be faithful to First
Amendment freedoms. The constitutional impossibility of leaving
Page 413 U. S. 505
the protection of those freedoms to the whim of the officers
charged with executing the warrant is dramatically underscored by
what the officers saw fit to seize under the warrant in this
case."
379 U.S. at
379 U. S. 485
(footnotes omitted).
Moreover, ordinary human experience should teach that the
seizure of a movie film from a commercial theater with regularly
scheduled performances, where a film is being played and replayed
to paid audiences, presents a very different situation from that in
which contraband is changing hands or where a robbery or assault is
being perpetrated. In the latter settings, the probable cause for
an arrest might justify the seizure of weapons, or other evidence
or instruments of crime, without a warrant.
Cf. Chimel v.
California, 395 U. S. 752,
395 U. S. 764
(1969);
id. at
395 U. S.
773-774 (WHITE, J., dissenting);
Preston v. United
States, 376 U. S. 364,
376 U. S. 367
(1964). Where there are exigent circumstances in which police
action literally must be "now or never" to preserve the evidence of
the crime, it is reasonable to permit action without prior judicial
evaluation. [
Footnote 6]
See Chambers v. Maroney, 399 U. S. 42,
399 U. S. 47-51
(1970).
Cf. Carroll v. United States, 267 U.
S. 132 (1925). The facts surrounding the "massive
seizures" of books in
Marcus
Page 413 U. S. 506
and
A Quantity of Books, or the seizure of the film in
Lee Art Theatre, presented no such "now or never"
circumstances.
II
The film seized in this case was being exhibited at a commercial
theater showing regularly scheduled performances to the general
public. The seizure proceeded solely on a police officer's
conclusions that the film was obscene; there was no warrant.
Nothing prior to seizure afforded a magistrate an opportunity to
"focus searchingly on the question of obscenity."
See Heller v.
New York, ante at
413 U. S.
488-489;
Marcus v. Search Warrant, 367 U.S. at
367 U. S. 732.
If, as
Marcus and
Lee Art Theatre held, a warrant
for seizing allegedly obscene material may not issue on the mere
conclusory allegations of an officer,
a fortiori, the
officer may not make such a seizure with no warrant at all.
"The use by government of the power of search and seizure as an
adjunct to a system for the suppression of objectionable
publications is not new. . . . The Bill of Rights was fashioned
against the background of knowledge that unrestricted power of
search and seizure could also be an instrument for stifling liberty
of expression."
Marcus v. Search Warrant, supra, at
367 U. S. 724,
367 U. S. 729.
In this case, as in
Lee Art Theatre, the admission of the
film in evidence requires reversal of petitioner's conviction. 392
U.S. at
392 U. S.
637.
The judgment of the Court of Appeals of Kentucky is reversed,
and this case remanded for further proceedings not inconsistent
with this opinion.
Reversed and remanded.
[For dissenting opinion of MR. JUSTICE DOUGLAS,
see
ante, p.
413 U. S.
494.]
Page 413 U. S. 507
[
Footnote 1]
Petitioner's lawyer made the following statement to the trial
jury during the closing arguments:
"I would be good enough to tell you at the outset that, in
behalf of Mr. Roaden, I am not going to get up here and defend the
film observed yesterday nor the revolting scenes in it or try to
argue or persuade you that those scene[s] were not obscene."
App. 37.
[
Footnote 2]
Kentucky Revised Statutes § 436.101 (1973), reads in relevant
part as follows:
"Obscene matter, distribution, penalties, destruction."
"(1) As used in this section: "
"(a) 'Distribute' means to transfer possession of, whether with
or without consideration."
"(b) 'Matter' means any book, magazine, newspaper, or other
printed or written material or any picture, drawing, photograph,
motion picture, or other pictorial representation or any statue or
other figure, or any recording, transcription or mechanical,
chemical or electrical reproduction or any other articles,
equipment, machines or materials."
"(c) 'Obscene' means that to the average person, applying
contemporary standards, the predominant appeal of the matter, taken
as a whole, is to prurient interest, a shameful or morbid interest
in nudity, sex, or excretion, which goes substantially beyond
customary limits of candor in description or representation of such
matters."
"(d) 'Person' means any individual, partnership, firm,
association, corporation, or other legal entity."
"(2) Any person who, having knowledge of the obscenity thereof,
sends or causes to be sent, or brings or causes to be brought, into
this state for sale or distribution, or in this state prepares,
publishes, prints, exhibits, distributes, or offers to distribute,
or has in his possession with intent to distribute or to exhibit or
offer to distribute, any obscene matter is punishable by fine of
not more than $1,000 plus five dollars ($5.00) for each additional
unit of material coming within the provisions of this chapter,
which is involved in the offense, not to exceed ten thousand
dollars ($10,000), or by imprisonment in the county jail for not
more than six (6) months plus one (1) day for each additional unit
of material coming within the provisions of this chapter, and which
is involved in the offense, such basic maximum and additional days
not to exceed 360 days in the county jail, or by both such fine and
imprisonment. If such person has previously been convicted of a
violation of this subsection, he is punishable by fine of not more
than $2,000 plus five dollars ($5.00) for each additional unit of
material coming within the provisions of this chapter, which is
involved in the offense, not to exceed $25,000, or by imprisonment
in the county jail for not more than one (1) year, or by both such
fine and such imprisonment. If a person has been twice convicted of
a violation of this section, a violation of this subsection is
punishable by imprisonment in the state penitentiary not exceeding
five (5) years."
"
* * * *"
"(8) The jury, or the court, if a jury trial is waived, shall
render a general verdict, and shall also render a special verdict
as to whether the matter named in the charge is obscene. The
special verdict or findings on the issue of obscenity may be: 'We
find the. . . (title or description of matter) to be obscene,' or,
'We find the . . . (title or description of matter) not to be
obscene,' as they may find each item is or is not obscene."
"(9) Upon the conviction of the accused, the court may, when the
conviction becomes final, order any matter or advertisement, in
respect whereof the accused stands convicted, and which remains in
the possession or under the control of the attorney general,
commonwealth's attorney, county attorney, city attorney or their
authorized assistants, or any law enforcement agency, to be
destroyed, and the court may cause to be destroyed any such
material in its possession or under its control."
[
Footnote 3]
We vacated the judgment in
Hosey v. City of
Jackson, 309 F.
Supp. 527 (SD Miss.1970), on the grounds of the Court's policy
of noninterference in state prosecution; we did not reach the
merits.
Hosey v. City of Jackson, 401 U.S. 987 (1971). We
also vacated the judgment in
Ledesma v.
Perez, 304 F.
Supp. 662 (ED La.1969), again on the grounds of noninterference
with state criminal proceedings prior to adjudications by state
courts.
Perez v. Ledesma, 401 U. S.
82 (1971).
[
Footnote 4]
In
Stanford v. Texas, supra, we acknowledged the
difference between books and weapons, narcotics, or cases of
whiskey.
[
Footnote 5]
This does not mean an adversary proceeding is needed before
seizure, since a warrant may be issued
ex parte.
Heller v. New York, ante, p.
413 U. S. 483.
[
Footnote 6]
Counsel for Kentucky, together with counsel for New York in
Heller v. New York, ante at
413 U. S. 493,
and counsel for California as
amicus curiae in
Heller, have emphasized that allegedly obscene films are
particularly difficult evidence to preserve unless kept in custody.
We again take judicial notice that films may be compact, may be
easy to destroy or to remove to another jurisdiction, and may be
subject to pretrial alterations by cutting out scenes and
resplicing reels.
See ibid. But, as the
Heller
case demonstrates, where films are scheduled for exhibition in a
commercial theater open to the public, procuring a warrant based on
a prior judicial determination of probable cause of obscenity need
not risk loss of the evidence.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR.
JUSTICE MARSHALL join, concurring in the judgment.
We granted certiorari to consider the holding of the Court of
Appeals of Kentucky that the Constitution does not require an
adversary hearing on obscenity prior to the seizure of reels of
film, where the seizure is incident to the arrest of the manager of
a drive-in movie theater. 473 S.W.2d 814 (1971). The statute under
which the prosecution was brought
* is, in my view,
unconstitutionally overbroad, and therefore invalid on its face.
See my dissent in
Paris Adult Theatre I v. Slaton,
ante, p.
413 U. S. 73. I
would therefore reverse the judgment of the Court of Appeals and
remand the case for further proceedings not inconsistent with my
dissenting opinion in
Slaton.
* Ky.Rev.Stat. § 436.101(2) provides in part that
"Any person who, having knowledge of the obscenity thereof,
sends or causes to be sent, or brings or causes to be brought, into
this state for sale or distribution, or in this state prepares,
publishes, prints, exhibits, distributes, or offers to distribute,
or has in his possession with intent to distribute or to exhibit or
offer to distribute, any obscene matter is punishable by fine of
not more than $1,000 . . . or by imprisonment in the county jail
for not more than six (6) months. . . ."