United States v. Brown

Citation274 F. Supp. 561
Decision Date18 October 1967
Docket NumberNo. 67 Cr. 584.,67 Cr. 584.
PartiesUNITED STATES of America. v. Robert BROWN, Defendant.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

Robert M. Morgenthau, U. S. Atty., for the Southern District of New York by Terry F. Lenzner, Asst. U. S. Atty., for the United States.

Lipsitz, Green, Fahringer, Roll, Schuller & James, by Herald Price Fahringer, Buffalo, N. Y., for defendant.

OPINION

TYLER, District Judge.

This is a motion by defendant Robert Brown for an order under Rule 41(e) of the Federal Rules of Criminal Procedure directing suppression and return of 419 cartons of magazines and other materials alleged to be obscene. For reasons to be discussed hereinafter, defendant's motion is granted.

Brown is the sole owner of the Overstock Book Co., Inc. in midtown New York, where the seizure took place on June 23, 1967. The seizure was made pursuant to a search warrant issued by Commissioner Earle Bishopp on that day, ordering a search of the second and third floors of the building in which the company is located and the seizure of "16 cartons containing obscene books * * *" which were alleged to be the fruits of the crime of transporting obscene material in interstate commerce. 18 U.S.C. § 1462 (1964). The applicable warrant was supported by the sworn affidavit of a special agent of the FBI which set forth that:

1) a theretofore reliable informant had notified the FBI that a number of cartons of obscene books were located at JFK International Airport;

2) another FBI agent had observed the contents of 3 of the 16 cartons mentioned in the warrant and the affiant was advised by the FBI that the other agent had found the contents to be obscene books, pamphlets and pictures;

3) the airbill covering the carriage of the cartons showed that they had been transported in interstate commerce; and

4) observation and investigation had led the affiant to conclude that the cartons could be found at the indicated premises.

None of the contents of the cartons were submitted to the Commissioner for his perusal; thus, there was no judicial determination, preliminary or otherwise, of obscenity prior to issuance and execution of the operative warrant.

Armed with the search warrant, agents of the FBI proceeded to seize a total of 419 cartons of allegedly obscene material on the premises of the Overstock Book Co. and arrest the defendant. He was subsequently indicted on June 29, 1967 and charged with transporting 16 cartons of obscene material in interstate commerce in violation of Sections 1465 and 1462 of Title 18 of the United States Code. Defendant has pleaded not guilty to this indictment.

At the threshold, defendant is faced with the government's contention that he has no standing to suppress under Rule 41(e). Relief under this rule is available only to a "person aggrieved" by the search. To be such a person, one is required to have a recognizable interest in the property seized or the premises searched. This requirement could be met if the movant was "legitimately on the premises where the search" occurred. Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 734, 4 L.Ed.2d 697 (1960), but the affidavits of the parties conflict on this point. This factual dispute need not be resolved, however, since the defendant properly comes within the ambit of the protection afforded to those with a recognizable interest in property seized.

In United States ex rel. DeForte v. Mancusi, 379 F.2d 897 (2d Cir. 1967), the Second Circuit ruled that a union vice-president had standing to object to the seizure of union books, holding he was the "victim" of the search, the "one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search and seizure directed at someone else." Id. at 903. The court explained that

"the allegedly improper activities which the state was attempting to curtail could be halted only by prosecuting DeForte and his fellow union officials. Little would have been gained by prosecuting or fining the union alone, or even driving it to extinction, for the guiding culprits would have remained free to conduct their illegal activities through a different proscenium." Id. at 902.

Though the Second Circuit went on to caution that its standing rule did not apply to "every stockholder, or employee" Id. at 905, it seems plain that it does apply to the sole owner of a corporation. It was Brown, the corporate owner, against whom the search here was directed; therefore, he has standing to contest the legality of the search.

The government's main contention on the merits is that the seizure was made pursuant to a valid search warrant. Alternatively, they contend that it was made incident to a lawful arrest. Were this a typical case of a seizure of contraband, I would assume arguendo that it could be sustained on either ground. See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Beigel, 254 F.Supp. 923 (S.D.N.Y.1966), aff'd, 370 F.2d 751 (2d Cir. 1967). But alleged obscenity cannot be treated as mere contraband. Marcus v. Search Warrant, 367 U.S. 717, 730-31, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 211-12, 84 S. Ct. 1723, 12 L.Ed.2d 809 (1964). "(T)he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn * * *. The separation of legitimate from illegitimate speech calls for * * * sensitive tools * * *." Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958).

Although the Supreme Court has not set down the precise constitutional standards for a conventional search and seizure of obscene materials in a criminal case, it has had occasion to express its view on such searches and seizures in the context of three civil forfeiture cases. A Quantity of Copies of Books, supra; Marcus, supra; Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957). The standards laid down in those cases would seem to be applicable to this motion. A search and seizure for the purpose of gathering evidence for a criminal obscenity prosecution imparts at least the same potential restraint on the dissemination of material protected by the First Amendment as one made solely for the purpose of commencing forfeiture proceedings. See Evergreen Review, Inc. v. Cahn, 230 F.Supp. 498, 504 (E.D.N.Y.1964); Flack v. Municipal Court, 59 Cal.Rptr. 872, 429 P.2d 192 (Cal.1967).

The common thread running through recent Supreme Court decisions on the seizure of allegedly obscene matter is that because the line between protected and unprotected speech is so difficult to draw, dissemination of a particular work should be completely undisturbed, at least until an independent determination of obscenity is made by a judicial officer. Complete restraint on any work must await a final judicial determination of obscenity.

These guidelines first appeared in Kingsley Books, Inc. v. Brown, supra. In Kingsley, the Supreme Court upheld New York's civil anti-obscenity procedure against an attack based on First Amendment principles. In essence, the New York procedure began with a preliminary hearing on notice, at which time the judge was to view the allegedly obscene material and decide whether to issue an injunction pendente lite. If one was issued, the restraint ran only against the publications found obscene at the preliminary hearing. The Supreme Court noted that until the full adversary proceedings were completed, however, the bookseller could retain the books and even sell them, subject, of course, to the possible sanction of contempt, especially if the final determination was that the material was obscene. Judging from the subsequent decisions in the area, it appears that the procedures described in Kingsley approach the minimum safeguards allowable under the federal constitution.

Kingsley was followed by Marcus v. Search Warrant, supra, a case with a fact pattern substantially similar to the one at bar. There a Missouri police officer purchased some magazines at local newsstands and, after a perusal of their contents, swore out a civil complaint stating that to his knowledge the magazines were obscene. No copies of the magazines were filed with the complaint or shown to the judicial officer issuing the search warrants. Six warrants were issued ordering the seizure of "obscene materials" at the newsstands. The officials executing the warrants did not confine their seizure to the magazines inspected by the officer who swore out the complaint. Instead, they seized all magazines which in their judgment were obscene —a total of approximately 11,000 copies of 280 publications. In holding the Missouri procedures defective, the Supreme Court said:

"Putting to one side the fact that no opportunity was afforded the appellants to elicit and contest the reasons for the officer's belief, or otherwise to argue against the propriety of the seizure to the issuing judge, still the 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. The warrants gave the broadest discretion to the executing officers; they merely repeated the language of the statute and the complaints, specified no publications, and left to the individual judgment of each of the many police officers involved the selection of such
...

To continue reading

Request your trial
26 cases
  • Delta Book Distributors, Inc. v. Cronvich, Civ. A. No. 68-1927
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • September 3, 1969
    ...of Books v. Kansas, 378 U.S. 205, 211, 84 S.Ct. 1723, 12 L.Ed.2d 809; Metzger v. Pearcy, 7 Cir., 393 F.2d 202, 204; United States v. Brown, S.D.N.Y., 274 F.Supp. 561; Cambist Films, Inc. v. Illinois, N.D.Ill., Eastern Div., 292 F.Supp. 185, decided October 21, Since prior restraint upon the......
  • United States v. Thomas
    • United States
    • U.S. District Court — Southern District of New York
    • April 2, 1968
    ...suggest that Levenberg's clear and timely consent, had he given it, could have legalized what the police did. Cf. United States v. Brown, 274 F.Supp. 561, 565 (S.D.N.Y.1967). In this sensitive area of First Amendment concern, it would be strong doctrine indeed to hold that a man's printer m......
  • Entertainment Ventures, Inc. v. Brewer
    • United States
    • U.S. District Court — Middle District of Alabama
    • December 18, 1969
    ...picture—the commission of this offense being based solely on the conclusory assertion of the police officer.10See United States v. Brown, S.D.N.Y.1967, 274 F.Supp. 561, 565. The drafting of an appropriate interlocutory injunction makes it necessary for us to decide what procedure would meet......
  • United States v. Alexander, 19757.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • May 22, 1970
    ...Fontaine v. Dial, 303 F.Supp. 436 (W.D.Tex.1969); Cambist Films, Inc. v. Illinois, 292 F.Supp. 185 (N.D.Ill.1968); United States v. Brown, 274 F.Supp. 561 (S.D.N.Y.1967); Carter v. Gautier, 305 F.Supp. 1098 (M.D. Ga.1969); Star Satellite, Inc. v. Rosetti (S.D.Miss. February 27, 1970) 6 Cr.L......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT