729 F.2d 864 (1st Cir. 1984), 81-1301, United States v. Guarino

Docket Nº:81-1301.
Citation:729 F.2d 864
Party Name:UNITED STATES of America, Appellee, v. Kenneth GUARINO, [*] Defendant, Appellant.
Case Date:February 28, 1984
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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729 F.2d 864 (1st Cir. 1984)

UNITED STATES of America, Appellee,


Kenneth GUARINO, [*] Defendant, Appellant.

No. 81-1301.

United States Court of Appeals, First Circuit

February 28, 1984

        Reheard Dec. 7, 1983.

        Herald Price Fahringer, New York City, for Kenneth Guarino and Imperial Distributors, Inc.

        William E. Seekford, Towson, Md., on brief for Little Book Shops, Inc., Anthony DiBona, and Gemini Enterprises, Inc.

        John F. Sheehan, Portland, Me., on brief for Edward Miguel, Gloria Osborne, and Joseph Renzi, Jr.

        Nelson S. Baker, Boston, Mass., on brief for defendant-appellant.

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        Maurice R. Flynn, III, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., and Gary S. Katzmann, Asst. U.S. Atty., Boston, Mass., were on brief, for appellee.

        Before CAMPBELL, Chief Judge, ALDRICH, COFFIN, BOWNES and BREYER, Circuit Judges.

        BAILEY ALDRICH, Senior Circuit Judge.

        Defendants were convicted of transporting obscene matter in interstate commerce for the purpose of sale, 18 U.S.C. Sec. 1465, and for conspiracy, 18 U.S.C. Sec. 371. The convictions were affirmed by a divided panel and subsequently their appeals were heard en banc. We reverse.

        On the morning of February 28, 1978, F.B.I. special officer Gilligan presented to a U.S. magistrate his four-page affidavit requesting a warrant authorizing the search for, and seizure of, obscene matter allegedly in a panel truck and presently being transported from defendants' warehouse in Providence, Rhode Island, for delivery to retail stores in Boston's Combat Zone. 1 Accompanying the affidavit were copies of three magazines, entitled Turkish Delight, Sex Foto Fiction No. 1, and Sex Foto Fiction No. 2, hereinafter sometimes the affidavit magazines. The affidavit adequately showed that copies of these magazines, openly traced to defendants' truck, and openly offered for sale at Combat Zone stores, had been there purchased by Boston police officers on various dates between January 17 and February 2, 1978. On the basis of the affidavit and inspection of the magazines the magistrate issued a warrant commanding the seizure of,

"a quantity of obscene materials, including books, pamphlets, magazines, newspapers, films and prints" presently in said truck. Contemporaneously, the magistrate issued an Order, so-called, containing his findings, and concluding with instructions to the officers. 2

        The warrant and the order did not refer to each other. The truck was stopped at some time prior to 11:45 A.M. when a copy of the warrant was served on the driver. Officer Gilligan, who ultimately led the search following the unauthorized arrest of the driver and the taking of the truck and contents to the F.B.I. garage, possessed a copy of the order.

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        Pausing here, we observe that the warrant language ("obscene materials") was precisely what was condemned in Marcus v. Search Warrant, 1961, 367 U.S. 717, 731-32, 81 S.Ct. 1708, 1715-16, 6 L.Ed.2d 1127, as constituting an impermissible general warrant. We are unanimously of the view that in this circumstance the failure at least to attach, or to incorporate the order by reference into the warrant, so that it would read on it, is unsupported by any discovered authority, and a majority of the court tends to believe the omission would have been fatal had the point been pressed below. However, remarks defendant made in the district court were inconsistent with asserting this objection ("[Y]our Honor ... we have an agreement that the agents were acting under the order ....") and since we are confident that the procedure will not occur again, we need not reach a final conclusion as to its validity. 3

        At the garage the officers searched through a large number of cartons, 4 and by afternoon had separated out eight magazines and five films, hereinafter sometimes the warrant items, for inspection, in situ, by the magistrate. After making that examination the magistrate, finding them obscene, issued a second warrant, calling for their seizure, which was done. Motions to suppress were twice denied. Imperial Distributors, Inc. v. United States, D.Mass., 1979, 473 F.Supp. 294; Id., D.Mass., 1980, unreported.

        It will be noted that, perhaps in recognition of their staleness, none of the affidavit magazines was included in the order's directions, but only "materials of the same tenor." It is to be further noted that the single substantive count and the single conspiracy count of the indictment are based upon the warrant items, only. As a consequence, if all of these were wrongly seized, the indictment must fail, and if at least some were improper, e.g., the films, the verdicts must be set aside, inasmuch as the jury could have convicted by finding any single item obscene. Cf. Brochu v. Ortho Pharmaceutical Corp., 1 Cir., 1981, 642 F.2d 652; Clark v. Taylor, 1 Cir., 1983, 710 F.2d 4, 8 n. 2.

        There are two basic complaints, which we will consider on the assumption that the order was a valid allonge to the warrant.

The Warrant

        The Fourth Amendment was a response to the writs of assistance that gave officers of the crown roving powers of intrusion upon person and property. In this connection it would be difficult to find anything more presently apt than the language of the Court in Stanford v. Texas, 1965, 379 U.S. 476, at 481-85, 85 S.Ct. 506, at 509-11, 13 L.Ed.2d 431. After quoting the Fourth Amendment, the Court said,

        "These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever 'be secure in their persons, houses, papers, and effects' from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws.


        "What is significant to note is that this history is largely a history of conflict between the Crown and the press. It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and eighteenth

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centuries.... In later years warrants were sometimes more specific in content, but they typically authorized the arrest and search of the premises of all persons connected with the publication of a particular libel, or the arrest and seizure of all the papers of a named person thought to be connected with a libel.


        "This is the history which prompted the Court less than four years ago to remark that '[t]he 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.' Marcus v. Search Warrant, 367 U.S. 717, at 724 [81 S.Ct. 1708 at 1712, 6 L.Ed.2d 1127]. 'This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped. 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.' Id., at 729 [81 S.Ct. at 1715].

        "In short, what this history indispensably teaches is that 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 of their seizure is the ideas which they contain. See Marcus v. Search Warrant, 367 U.S. 717 [81 S.Ct. 1708, 6 L.Ed.2d 1127]. A Quantity of Books v. Kansas, 378 U.S. 205 [84 S.Ct. 1723, 12 L.Ed.2d 809]. No less a standard could be faithful to First Amendment freedoms.


        " '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, at 196 [48 S.Ct. 74, at 76, 72 L.Ed. 231]."

        To tell the officers to seize anything which, in their opinion, meets the omnibus legal definition of obscenity is not "scrupulous exactitude." Nor does it become such by adding "of the same tenor" as three named magazines, especially when the sameness is so broadly defined as to include any communicative material, from books to prints to motion pictures. We note particularly Stanford 's requirement, ante, quoting from Marron v. United States, that "nothing is left to the discretion of the officer."

        Continuing with Stanford, 5 379 U.S. at p. 486, 85 S.Ct. at p. 512,

"We need not decide in the present case whether the description of the things to be seized would have been too generalized to pass constitutional muster, had the things been weapons, narcotics or 'cases of whiskey.' See Steele v. United States No. 1, 267 U.S. 498, 504 [45 S.Ct. 414, 416, 69 L.Ed. 757] 18 The point is that it was not any contraband of that kind which was ordered to be seized, but literary material--'books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas, and the operations of the Communist Party in Texas.' The indiscriminate sweep of that language is constitutionally intolerable. To hold otherwise would be false to the terms of the Fourth Amendment,...

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