New York v. Video, Inc

• Decision Date: 22 April 1986
• Docket Number: No. 85-363,85-363
• Citation: 475 U.S. 868,89 L.Ed.2d 871,106 S.Ct. 1610
• Parties: NEW YORK, Petitioner v. P.J. VIDEO, INC., dba Network Video, et al
• Court: U.S. Supreme Court

475 U.S. 868

106 S.Ct. 1610

89 L.Ed.2d 871

NEW YORK, Petitioner

v P.J. VIDEO, INC., dba Network Video, et al.

No. 85-363.

Argued March 4, 1986.

Decided April 22, 1986.

Syllabus

Following an investigation by the Erie County, N.Y., District Attorney's Office, an investigator viewed videocassette movies that had been rented from respondents' store by a member of the County Sheriff's Department.The investigator then executed affidavits summarizing the theme of, and conduct depicted in, each movie.These affidavits were attached to an application for a warrant to search respondents' store, and a New York Supreme Court Justice issued the warrant authorizing the search and the seizure of the movies.The warrant was executed, and the movies were seized.Respondents were charged in a New York Justice Court with violating the New York obscenity statute and moved to suppress the seized movies on the ground that the warrant was issued without probable cause to believe that the movies were obscene.The Justice Court granted the motion and dismissed the charges, and both the County Court and the New York Court of Appeals affirmed.The Court of Appeals held that there was a "higher" probable-cause standard for issuing warrants to seize such things as books and movies than for warrants to seize such things as weapons or drugs, and that under this "higher" standard there was insufficient information in the affidavits to permit the issuing justice to believe that the movies in question were obscene under New York law.

Held: No "higher" probable-cause standard was required by the First Amendment for issuance of the warrant in question.An application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same probable-cause standard used to review warrant applications generally, namely, that there is a "fair probability" that evidence of a crime will be found in the particular place to be searched.Evaluating the supporting affidavits here under this standard, the warrant was supported by probable cause to believe that the movies were obscene under New York law, and they should not have been suppressed.Pp. 873-878.

65 N.Y.2d 566, 493 N.Y.S.2d 988, 483 N.E.2d 1120, reversed and remanded.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL and O'CONNOR, JJ., joined.MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 884.

John J. DeFranks, Buffalo, N.Y., for petitioner.

Paul John Cambria, Jr., Buffalo, N.Y., for respondent.

Justice REHNQUISTdelivered the opinion of the Court.

This case concerns the proper standard for issuance of a warrant authorizing the seizure of materials presumptively protected by the First Amendment.RespondentsP.J. Video, Inc., and James Erhardt were charged in the village of Depew, New York, Justice Court with six counts of obscenity in the third degree under § 235.05(1) of the New York Penal Law.¹Respondents moved to suppress five videocassette movies that had been seized from respondents' store, and that formed the basis for the obscenity charges against respondents, on the ground that the warrant authorizing the seizure was issued without probable cause to believe that the movies were obscene.The Justice Court granted the motion and dismissed the informations under which respondents were charged, and both the County Court of Erie County and the New York Court of Appeals affirmed.65 N.Y.2d 566, 493 N.Y.S.2d 988, 483 N.E.2d 1120(1985).We granted certiorari to resolve the conflict between the decision of the New York Court of Appeals in the instant case and the decisions in Sequoia Books, Inc. v. McDonald,725 F.2d 1091(CA71984), andUnited States v. Pryba,163 U.S.App.D.C. 389, 502 F.2d 391(1974), cert. denied, 419 U.S. 1127, 95 S.Ct. 815, 42 L.Ed.2d 828(1975).474 U.S. 918, 106 S.Ct. 244, 88 L.Ed.2d 253(1985).We now reverse the judgment of the Court of Appeals.

The obscenity charges against respondents arose out of an investigation by the Erie County District Attorney's Office.Investigator David J. Groblewski was assigned to review 10 videocassette movies that had been rented from respondents' store by a member of the Erie County Sheriff's Department.² Groblewski viewed the movies in their entirety, and executed affidavits summarizing the theme of, and conduct depicted in, each film.The affidavits were attached to an application filed by the village of Depew Police Department for a warrant to search respondents' store.

A justice of the New York Supreme Court issued the warrant, authorizing the search of the store and the seizure of the movies.The warrant was executed the next day and, according to a sworn, itemized inventory statement, the police seized 1 or 2 copies of each of the 10 movies.A total of 13 videocassettes were seized.The justice who had issued the warrant ordered that the videocassettes be temporarily retained by the police as evidence for trial.SeeN.Y.Crim.Proc.Law §§ 690.05-690.55(McKinney 1984).

Respondents ultimately were charged in the village of Depew Justice Court with violating the New York obscenity laws with respect to only 5 of the 10 movies.The affidavits describing these five movies appear in full in the Appendix to this opinion.³Respondents moved for suppression of the seized videocassettes, alleging that the warrant authorizing their seizure was not supported by probable cause because the issuing justice had not personally viewed the movies.The Justice Court granted the motion and dismissed the informations under which respondents were charged, and on the State's appeal the County Court of Erie County affirmed.

The New York Court of Appeals likewise affirmed, although on a different theory than that of the Justice Court.According to the Court of Appeals, "there is a higher standard for evaluation of a warrant application seeking to seize such things as books and films, as distinguished from one seeking to seize weapons or drugs, for example (Roaden v. Kentucky, [413 U.S. 496], 504[93 S.Ct. 2796, 2801, 37 L.Ed.2d 757][1973];Marcus v. Search Warrant,367 U.S. 717, 730-731[81 S.Ct. 1708, 1715-16, 6 L.Ed.2d 1127][1961] ).In applying the [Fourth]Amendment to such items, the court must act with 'scrupulous exactitude'(Stanford v. Texas,379 U.S. 476, 481-485[85 S.Ct. 506, 509-12, 13 L.Ed.2d 431][1965];see also, Maryland v. Macon,472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370[1985] )."65 N.Y.2d, at 569-570, 493 N.Y.S.2d, 991, 483 N.E.2d, at 1123(footnote omitted).Using this "higher" probable-cause standard to review the affidavits submitted in support of the warrant application, the Court of Appeals stated:

"Many of the scenes described contain explicit sexual activity, patently offensive by any constitutional standard, but the allegations of the affidavits do not indicate whether they constitute all, most or a few of the scenes presented in the films. . . .The descriptions of the action are not supplemented by references to the narrative or dialogue of the films and the affiant attempted to describe the 'character' or 'theme' of the movies by settings having nothing to do with the plot. . . .He made no attempt to reveal the story line (or lack of one) of the films or demonstrate that their 'predominant appeal' was to prurient interest.In short, none of the affidavits permit an inference that the scenes described are more than a catalog of offensive parts of the whole."Id., at 570-571, 493 N.Y.S.2d, at 992, 483 N.E.2d, at 1124.

The Court of Appeals concluded that the affidavits did not contain sufficient information to permit the issuing justice, "applying contemporary community standards, to judge the films as a whole and determine that they are within the statutory definitions of obscenity and thus are not entitled to constitutional protection."Id., at 572, 493 N.Y.S.2d, at 992, 483 N.E.2d, at 1124(footnote omitted).One judge dissented, arguing that the affidavits contained enough information for the issuing justice "to reasonably believe that the video movies were obscene as legislatively defined."Id., at 573, 493 N.Y.S.2d, at 993, 483 N.E.2d, at 1125(Jasen, J., dissenting).⁴

We have long recognized that the seizure of films or books on the basis of their content implicates First Amendment concerns not raised by other kinds of seizures.For this reason, we have required that certain special conditions be met before such seizures may be carried out.In Roaden v. Kentucky,413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757(1973), for example, we held that the police may not rely on the "exigency" exception to the Fourth Amendment's warrant requirement in conducting a seizure of allegedly obscene materials, under circumstances where such a seizure would effectively constitute a "prior restraint."In A Quantity of Books v. Kansas,378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809(1964), andMarcus v. Search Warrant,367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127(1961), we had gone a step farther, ruling that the large-scale seizure of books or films constituting a "prior restraint" must be preceded by an adversary hearing on the question of obscenity.In Heller v. New York,413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745(1973), we emphasized that, even where a seizure of allegedly obscene materials would not constitute a "prior restraint," but instead would merely preserve evidence for trial, the seizure must be made pursuant to a warrant and there must be an opportunity for a prompt postseizure judicial determination of obscenity.And in Lee Art Theatre, Inc. v. Virginia,392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313(1968), we held that a warrant authorizing the seizure of materials presumptively protected by the First Amendment may not issue based solely on the conclusory allegations of a police officer that the sought-after materials are obscene, but instead...