367 U.S. 717 (1961), 225, Marcus v. Search Warrant of Property at 104 East Tenth

Docket Nº:No. 225
Citation:367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127
Party Name:Marcus v. Search Warrant of Property at 104 East Tenth
Case Date:June 19, 1961
Court:United States Supreme Court

Page 717

367 U.S. 717 (1961)

81 S.Ct. 1708, 6 L.Ed.2d 1127



Search Warrant of Property at 104 East Tenth

No. 225

United States Supreme Court

June 19, 1961

Street, Kansas City, Missouri

Argued March 30, 1961



Proceeding under certain Missouri statutes, as supplemented by a rule of the State Supreme Court, a city police officer appeared in a state trial court and filed a sworn complaint that each of the appellants, a wholesale distributor of magazines, newspapers and books and the operators of five retail newsstands, kept "obscene" publications for sale. In an ex parte proceeding, without granting appellants a hearing or even seeing any of the publications in question, and without specifying any particular publications, the trial judge issued search warrants authorizing police officers to search appellants' premises and seize all "obscene" material. Different police officers searched appellants' premises and, after hasty examination, seized all copies of all publications which, in their judgment, were obscene. Nearly two weeks later, appellants were given a hearing, at which they moved to quash the search warrants, for return of the seized publications, and for suppression of their use in evidence, on the ground that their seizure violated the protection of free speech and press guaranteed by the Fourteenth Amendment. These motions were denied, and, over two months after the seizure, the trial court found that 100 of the seized publications were obscene, and it ordered their destruction; but it also found that 180 other seized publications were not obscene, and it ordered them returned to their owners. The State Supreme Court sustained the validity of these procedures, and an appeal was taken to this Court.


1. This Court had jurisdiction of the appeal under 28 U.S.C. § 1257(2). P. 721.

2. The search and seizure procedures applied in this case lacked the safeguards to nonobscene material which the Due Process Clause of the Fourteenth Amendment requires to prevent erosion of the constitutional guaranties of freedom of speech and press, and the judgment is reversed. Pp. 729-738.

(a) Under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity

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without regard to the possible consequences for constitutionally protected speech. Pp. 729-731.

(b) As applied in this case, Missouri's procedures confided to law enforcement officials broad discretion to seize allegedly obscene publications without adequate safeguards to assure nonobscene material the constitutional protection to which it is entitled. Pp. 731-733.

(c) Kingsley Books, Inc., v. Brown, 354 U.S. 436, distinguished. Pp. 731-738.

334 S.W.2d 119, reversed.

BRENNAN, J., lead opinion

[81 S.Ct. 1709] MR. JUSTICE BRENNAN delivered the opinion of the Court.

This appeal presents the question whether due process under the Fourteenth Amendment was denied the appellants by the application in this case of Missouri's procedures authorizing the search for and seizure of allegedly obscene publications preliminarily to their destruction by burning or otherwise if found by a court to be obscene. The procedures are statutory, but are supplemented by a rule of the Missouri Supreme Court.1 The warrant for search for and seizure of obscene material issues on a sworn complaint filed with a judge or magistrate.2

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If the complainant states "positively and not upon information or belief," or states "evidential facts from which such judge or [81 S.Ct. 1710] magistrate determines the existence of probable cause" to believe that obscene material "is being held or kept in any place or in any building,"

such judge or magistrate shall issue a search warrant directed to any peace officer commanding him to search the place therein described and to seize and bring before such judge or magistrate the personal property therein described.3

The owner of the property is not afforded a

Page 720

hearing before the warrant issues; the proceeding is ex parte. However, the judge or magistrate issuing the warrant must fix a date, not less than five nor more than 20 days after the seizure, for a hearing to determine whether the seized material is obscene.4 The owner of the material may appear at such hearing and defend

Page 721

against the charge.5 No time limit is provided within which the judge must announce his decision. If the judge finds that the material is obscene, he is required to order it to be publicly destroyed, by burning or otherwise; if he finds that it is not obscene, he shall order its return to its owner.6

[81 S.Ct. 1711] The Missouri Supreme Court sustained the validity of the procedures as applied in this case. 334 S.W.2d 119. The appellants brought this appeal here under 28 U.S.C. § 1257(2). We postponed consideration of the question of our jurisdiction to the hearing of the case on the merits. 364 U.S. 811. We hold that the appeal is properly here, see Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, and turn to the merits.

Appellant, Kansas City News Distributors, managed by appellant, Homer Smay, is a wholesale distributor of magazines, newspapers and books in the Kansas City area. The other appellants operate five retail newsstands

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in Kansas City. In October 1957, Police Lieutenant Coughlin of the Kansas City Police Department Vice Squad was conducting an investigation into the distribution of allegedly obscene magazines. On October 8, 1957, he visited Distributors' place of business and showed Smay a list of magazines. Smay admitted that his company distributed all but one of the magazines on the list. The following day, October 9, Lieutenant Coughlin visited the five newsstands and purchased one magazine at each.7 On October 10, the officer signed and filed six sworn complaints in the Circuit Court of Jackson County, stating in each complaint that "of his own knowledge" the appellant named therein, at its stated place of business, "kept for the purpose of [sale] . . . obscene . . . publications. . . ." No copy of any magazine on Lieutenant Coughlin's list, or purchased by him at the newsstands, was filed with the complaint or shown to the circuit judge. The circuit judge issued six search warrants authorizing, as to the premises of the appellant named in each,

any peace officer in the State of Missouri . . . [to] search the said premises . . . within 10 days after the issuance of this warrant by day or night, and . . . seize . . . [obscene materials] and take same into your possession. . . .

All of the warrants were executed on October 10, but by different law enforcement officers. Lieutenant Coughlin, with two other Kansas City police officers and an officer of the Jackson County Sheriff's Patrol, executed the warrant against Distributors. Distributors' stock of magazines runs "into hundreds of thousands . . . [p]robably closer to a million copies." The officers examined the publications in the stock on the main floor of the establishment,

Page 723

not confining themselves to Lieutenant Coughlin's original list. They seized all magazines which, "[i]n our judgment," were obscene; when an officer thought "a magazine . . . ought to be picked up," he seized all copies of it. After three hours, the examination was completed, the the magazines seized were "hauled away in a truck, and put on the 15th floor of the courthouse." A substantially similar procedure was followed at each of the five newsstands. Approximately 11,000 copies of 280 publications, principally magazines but also some books and photographs, were seized at the six places.8

[81 S.Ct. 1712] The circuit judge fixed October 17 for the hearing, which was later continued to October 23. Timely motions were made by the appellants to quash the search warrants and to suppress as evidence the property seized, and for the immediate return of the property. The motions were rested on a number of grounds, but we are concerned only with the challenge to the application of the procedures in the context of the protections for free speech and press assured against state abridgement by the Fourteenth Amendment.9 Unconstitutionality in violation of the Fourteenth Amendment was asserted because the procedures as applied (1) allowed a seizure by police officers

without notice or any hearing afforded to the movants prior to seizure for the purpose of determining whether or not these . . . publications are obscene . . . ,

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and (2) because they

allowed police officers and deputy sheriffs to decide and make a judicial determination after the warrant was issued as to which . . . magazines were . . . obscene . . . and were subject to seizure, impairing movants' freedom of speech and publication.

The circuit judge reserved rulings on the motions, and heard testimony of the police officers concerning the events surrounding the issuance and execution of the several warrants. On December 12, 1957, the circuit judge filed an unreported opinion in which he overruled the several motions and found that 100 of the 280 seized items were obscene. A judgment thereupon issued directing that the 100 items, and all copies thereof,

shall be retained by the Sheriff of Jackson County . . . as necessary evidence for the purpose of possible criminal prosecution or prosecutions, and, when such necessity no longer exists, said Sheriff . . . shall publicly destroy the same by burning within thirty days thereafter;

it ordered further that the 180 items not found to be obscene, and all copies thereof, "shall be returned forthwith by the Sheriff . . . to the rightful owner or owners. . . ."


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. Historically, the struggle for freedom of speech and press in England was bound up...

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