Marcus v. Search Warrants of Property At 104 East Tenth Street, Kansas City, Missouri

• Decision Date: 19 June 1961
• Docket Number: No. 225,225
• Parties: William MARCUS et al., Appellants, v. SEARCH WARRANTS OF PROPERTY AT 104 EAST TENTH STREET, KANSAS CITY, MISSOURI, et al
• Court: U.S. Supreme Court

367 U.S. 717

81 S.Ct. 1708

6 L.Ed.2d 1127

William MARCUS et al., Appellants,

v SEARCH WARRANTS OF PROPERTY AT 104 EAST TENTH STREET, KANSAS CITY, MISSOURI, et al.

No. 225.

Argued March 30, 1961.

Decided June 19, 1961.

Mr. Sidney M. Glazer, Berkeley, Mo., for appellants.

Mr. Fred L. Howard, Jefferson City, Mo., for appellees.

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 magis- trate.² If the complainant states 'positively and not upon information or belief,' or states 'evidential facts from which such judge or 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 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 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

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), 28 U.S.C.A. § 1257(2). We postponed consideration of the question of our jurisdiction to the hearing of the case on the merits. 364 U.S. 811, 81 S.Ct. 61, 5 L.Ed.2d 40. We hold that the appeal is properly here, see Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239, 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 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 Cotober 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 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

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 h e 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 ob- scene * * *,' 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 * * *.'

I.

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 with the issue of the scope of the search and seizure power. See generally Siebert, Freedom of the Press in England, 1476—1776; Hanson, Government and the Press, 1695—1763. It was a principal instrument for the enforcement of the Tudor licensing system. The Stationers' Company was incorporated in 1557 to help implement that system and was empowered 'to make search whenever it shall please them in any place, shop house, chamber, or building or any printer, binder or bookseller whatever within our kingdom of England or the dominions of the same of or for any books or things printed, or to be printed, and to seize, take hold, burn, or turn to the proper use of the foresaid community, all and several those books and things which are or shall be printed contrary to the form of any statute, act, or proclamation, made or to be made * * *.'¹⁰

An order of counsel confirmed and expanded the Company's power in 1566,¹¹ and the Star Chamber reaffirmed it in 1586 by a decree 'That it shall be lawful for the wardens of the said Company for the time being or any two of the said Company thereto deputed by the said wardens, to make search in all workhouses, shops, warehouses of printers, booksellers, bookbinders, or where they shall have reasonable cause of suspicion, and all books (etc.) * * * contrary to * * * these present ordinances to stay and take to her Majesty's use * * *.'¹² Books thus seized were taken to Stationers' Hall where they were inspected by ecclesiastical officers, who decided whether they should be burnt. These powers were exercised under the Tudor censos hip to suppress both Catholic and Puritan dissenting literature.¹³

Each succeeding regime during turbulent Seventeenth Century England used the search and seizure power to suppress publications. James I commissioned the ecclesiastical judges comprising the Court of High Commission 'to enquire and search for * * * all heretical, schismatical and seditious books, libels, and writings, and all other books, pamphlets and partraitures offensive to the state or set forth without sufficient and lawful authority in that behalf, * * * and the same books (etc.) and their printing-presses themselves likewise to seize and so to order and dispose of them * * * as they may not after serve or be employed for any such unlawful use * * *.'¹⁴ The Star Chamber decree of 1637, re-enacting the requirement that all books be licensed, continued the broad powers of the Stationers' Company to enforce the licensing laws.¹⁵ During the political overturn of the 1640's Parliament on several occasions asserted the necessity...