413 U.S. 483 (1973), 71-1043, Heller v. New York

Docket Nº:No. 71-1043
Citation:413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745
Party Name:Heller v. New York
Case Date:June 25, 1973
Court:United States Supreme Court

Page 483

413 U.S. 483 (1973)

93 S.Ct. 2789, 37 L.Ed.2d 745



New York

No. 71-1043

United States Supreme Court

June 25, 1973

Argued November 14, 1972



Petitioner was manager of a movie theater where a sexually explicit film was exhibited. After police officers saw part of the film, an assistant district attorney requested a New York Criminal Court judge to view it. Upon seeing the entire performance, the judge signed warrants for seizure of the film and for petitioner's arrest on the ground that the film was obscene. Exhibition of an obscene film violates New York Penal Law § 235.05. No pretrial motion was made for return of the single film copy seized or for its suppression as evidence. There was no showing below that the seizure prevented exhibition of the film by use of another copy, and the record does not indicate whether another copy was available. Petitioner's trial was held 47 days after his arrest and the film seizure, and he was convicted. He argued that seizure of the film without a prior adversary hearing violated the Fourteenth Amendment. He also challenged his conviction on substantive grounds, arguing that he was convicted under standards of obscenity both overbroad and unconstitutionally vague, and that films shown only to consenting adults in private are constitutionally protected. The New York Court of Appeals affirmed his conviction, holding that an adversary hearing prior to seizure of the film was not required and that an ex parte warrant, issued after a judicial determination of obscenity, was constitutionally sufficient.


1. Where a film is seized for the bona fide purpose of preserving it as evidence in a criminal proceeding, and it is seized pursuant to a warrant issued after a determination of probable obscenity 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. On a showing to the trial court that other copies of the film are not available for exhibition, the court should permit the seized film to be copied so that exhibition can be continued pending judicial resolution of the obscenity issue in an adversary proceeding. Otherwise, the film must be returned.

Page 484

With such safeguards, a pre-seizure adversary hearing is not mandated by the First Amendment. Pp. 488-493.

2. The case is remanded to afford the state courts an opportunity to reconsider petitioner's substantive challenges in light of Miller v. California, ante, p. 15, and Paris Adult Theatre I v. Slaton, ante, p. 49, which establish guidelines for the lawful state regulation of obscene material. P. 494.

29 N.Y.2d 319, 277 N.E.2d 651, vacated and remanded.

BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 494. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 494.

BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of of the Court.

We granted certiorari in this case to determine whether a judicial officer authorized to issue warrants, who has viewed a film and finds it to be obscene, can issue a constitutionally valid warrant for the film's seizure as evidence in a prosecution against the exhibitor without first conducting an adversary hearing on the issue of probable obscenity.

Page 485

Petitioner was manager of a commercial movie theater in the Greenwich Village area of New York City. On July 29, 1969, a film called "Blue Movie" was exhibited there. The film depicts a nude couple engaged in ultimate sexual acts. Three police officers saw part of the film. Apparently on the basis of their observations, an assistant district attorney of New York County requested a judge of the New York Criminal Court to see a performance. On July 31, 1969, the judge, accompanied by a police inspector, purchased a ticket and saw the entire film. There were about 100 other persons in the audience. Neither the judge nor the police inspector recalled any signs restricting admission to adults.1

At the end of the film, the judge, without any discussions with the police inspector, signed a search warrant for the seizure of the film and three "John Doe" warrants for the arrest of the theater manager, the projectionist, and the ticket taker, respectively. No one at the theater was notified or consulted prior to the issuance of the warrants. The judge signed the warrants because

it was, and is my opinion that that film is obscene, and was obscene as I saw it then under the definition of obscene, that is [in] . . . section 235.00 of the Penal Law.

Exhibition of an obscene film violates New York Penal Law § 235.05.2

Page 486

The warrants were immediately executed by police officers. Three reels, composing a single copy of the film, were seized. Petitioner, the theater manager, was arrested, as were the projectionist and the ticket taker.3 No pretrial motion was made for the return of the film or for its suppression as evidence. Nor did petitioner make a pretrial claim that seizure of the film prevented its exhibition by use of another copy, and the record does not conclusively indicate whether such a copy was available. On September 16, 1969, 47 days after his arrest and the seizure of the movie, petitioner came to trial, a jury having been waived, before three judges of the New York City Criminal Court.

Page 487

At trial, the prosecution's case rested almost solely on testimony concerning the arrests and the seizure of the film, together with the introduction into evidence of the seized film itself. The film was exhibited to the trial judges. The defense offered three "expert" witnesses: an author, a professor of sociology, and a newspaper writer. These witnesses testified that the film had social, literary, and artistic importance in illustrating "a growing and important point of view about sexual behavior" as well as providing observations "about the political and social situation in this country today. . . ." Petitioner testified that the theater's employees were instructed not to admit persons who appeared to be under 18 years of age, unless they "had identification" that they were 18. Petitioner also testified that there was a sign at the box office stating that "no one under 17 [would be] admitted." Both at the end of the prosecution's case and his own case, petitioner moved to dismiss the indictment on the ground that the seizure of the film, without a prior adversary hearing, violated the Fourteenth Amendment.

At the close of trial on September 17, 1969, petitioner was found guilty by all three judges of violating New York Penal Law § 235.05. On appeal, both the Supreme Court of the State of New York, Appellate Term, and the Court of Appeals of the State of New York viewed the film and affirmed petitioner's conviction. The Court of Appeals, relying on this Court's opinion in Lee Art Theatre v. Virginia, 392 U.S. 636, 637 (1968), held that an adversary hearing was not required prior to seizure of the film, and that the judicial determination which occurred prior to seizure in this case was constitutionally sufficient. In so holding, the Court of Appeals explicitly disapproved, as going "beyond any requirement imposed on State courts by the Supreme

Page 488

Court," Astro Cinema Corp. v. Mackell, 422 F.2d 293 (CA2 1970), and Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (CA2 1969), cert. denied, 397 U.S. 920 (1970), cases requiring an adversary hearing prior to any seizure of movie film. 29 N.Y.2d 319, 323, 277 N.E.2d 651, 653 (1971).

We affirm this holding of the Court of Appeals of the State of New York. This Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. See Times Film Corp. v. Chicago, 365 U.S. 43 (1961); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 440 442 (1957). In particular, there is no such absolute right where allegedly obscene material is seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution. In Lee Art Theatre v. Virginia, supra, the Court went so far as to suggest that it was an open question whether a judge need "have viewed the motion picture before issuing the warrant."4 Here, the judge viewed the entire film and, indeed, witnessed the alleged criminal act. It is not contested that the judge was a "neutral, detached magistrate," that he had a full opportunity for independent judicial

Page 489

determination of probable cause prior to issuing the warrant, and that he was able to "focus searchingly on the question of obscenity." See Marcus v. Search Warrant, 367 U.S. 717, 731-733 (1961). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 449-453 (1971); Giordenello v. United States, 357 U.S. 480, 485-486 (1958); Johnson v. United States, 333 U.S. 10, 14-15 (1948).

In United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), and Freedman v. Maryland, 380 U.S. 51 (1965), we held that

"because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint."

402 U.S. at 367, quoting 380 U.S. at 58 (emphasis added). Those cases involved, respectively, seizure of imported materials by federal customs agents and state administrative licensing of motion pictures, both civil procedures directed at absolute suppression of the materials themselves. Even in those cases, we did not require that the adversary proceeding must take place prior to initial seizure. Rather, it was held that a judicial...

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