People v. P.J. Video, Inc.

• Decision Date: 05 July 1985
• Citation: 493 N.Y.S.2d 988,483 N.E.2d 1120,65 N.Y.2d 566
• Parties: , 483 N.E.2d 1120 The PEOPLE of the State of New York, Appellant, v. P.J. VIDEO, INC., Doing Business as Network Video, and James Erhardt, Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 988

493 N.Y.S.2d 988

65 N.Y.2d 566, 483 N.E.2d 1120

The PEOPLE of the State of New York, Appellant, v. P.J. VIDEO, INC., Doing Business as Network Video, and James

Erhardt, Respondents.

Court of Appeals of New York.

July 5, 1985.

Richard J. Arcara, Dist. Atty., Buffalo (Jo W. Faber and John J. DeFranks, Buffalo, of counsel), for appellant.

Paul J. Cambria, Jr., and Mary Good, Buffalo, for respondents.

OPINION OF THE COURT

SIMONS, Judge.

This appeal concerns the very basic issue of what information must be contained in an affidavit supporting a search warrant to authorize the seizure of materials which presumptively are entitled to the constitutional protection of the 1st Amendment. It arises from proceedings instituted in the Village of Depew Justice Court charging defendants with six counts of obscenity in the third degree based upon their possession of allegedly obscene video cassette movies in violation of Penal Law § 235.05(1). That statute provides:

"A person is guilty of obscenity in the third degree when, knowing its content and character, he:

"1. Promotes, or possesses with intent to promote, any obscene material".

After arraignment, defendants moved to suppress the seized films contending that the warrant authorizing their seizure was not based upon probable cause. Justice Court granted defendants' motion and dismissed the informations and County Court affirmed its order. The People appeal by leave of a Judge of this court. They contend that the Justice Court, a local criminal court, was without jurisdiction to invalidate a search warrant issued by Supreme Court, a superior court (CPL 10.10[2], [3] ), and that even if it did have the power to review the Supreme Court warrant it erred in finding that the Supreme Court Justice authorized the warrant without probable cause.

Insofar as the jurisdictional question is concerned, the motion was properly entertained by Justice Court. The Constitution provides that local courts "shall have the jurisdiction prescribed by the legislature" (N.Y. Const., art. VI, § 17[a] ) and the Legislature has provided that when an information is pending in a local criminal court, as these informations were, a motion to suppress "must be made in such court" (CPL 710.50[1][c] ). Moreover, Justice Court had such jurisdiction even though the warrant was issued by a Supreme Court Justice. CPL 690.05 provides that warrants shall be issued by local criminal courts but the Supreme Court Justice was authorized to issue this warrant because at the time he did so he was exercising preliminary--not trial--jurisdiction of the local criminal court, as the Criminal Procedure Law permits him to do (see, CPL 10.10[3][f] ). Thus, Justice Court acted properly when it reviewed his probable cause determination (see, People v. Guerra, 65 N.Y.2d 60, 489 N.Y.S.2d 718, 478 N.E.2d 1319). Whether it is wise for a Village Justice, who may or may not be a lawyer, to review a Supreme Court Justice's warrant authorizations is a matter for the Legislature.

Turning to the merits of defendants' motion, analysis starts with recognition of the constitutional requirement that no warrant shall issue except upon probable cause (N.Y. Const., art. I, § 12; U.S. Const. 4th Amend.). This requirement was designed to insure that the determination of probable cause (or to use the statutory term, reasonable cause [see, CPL 690.10] ), to believe that the property is subject to seizure must be made by a neutral magistrate interposed between police officers and the citizenry and exercising a " 'detached and independent judgment' " (People v. Potwora, 48 N.Y.2d 91, 94, 421 N.Y.S.2d 850, 397 N.E.2d 361; People v. Hanlon, 36 N.Y.2d 549, 558, 369 N.Y.S.2d 677, 330 N.E.2d 631; Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127). Before finding probable cause, the magistrate must have before him "the full facts from which inferences might be drawn, and information necessary to determine Consistent with these rules, the task of the issuing magistrate in this case was not to decide guilt or innocence but to determine in a preliminary way from the information submitted and available to him whether there was probable cause to believe that the material to be seized was obscene within the tripartite definition of the statute ² (see, People v. Potwora, 48 N.Y.2d 91, 421 N.Y.S.2d 850, 397 N.E.2d 361, supra; People v. Abronovitz, 31 N.Y.2d 160, 335 N.Y.S.2d 279, 286 N.E.2d 721, supra; People v. Rothenberg, 20 N.Y.2d 35, 281 N.Y.S.2d 316, 228 N.E.2d 379, supra ). Because the record does not indicate whether the magistrate viewed the films or questioned the investigators, we must judge his warrant authorization solely on the allegations contained in the papers submitted to him.

                their reliability" and he must undertake a searching inquiry of them.  It is a duty which he may not delegate, in part or in whole, regardless of the qualifications of the person on whom reliance is placed (People v. Potwora, supra, 48 N.Y.2d, at pp. 94-95, 421 N.Y.S.2d 850, 397 N.E.2d 361;  Lee Art Theater v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313;  see also, Monserrate v. Upper Ct. St. Book Store, 49 N.Y.2d 306, 425 N.Y.S.2d 304, 401 N.E.2d 414;  People v. Abronovitz, 31 N.Y.2d 160, 164-165, 335 N.Y.S.2d 279, 286 N.E.2d 721;  People v. Rothenberg, 20 N.Y.2d 35, 38, 281 N.Y.S.2d 316, 228 N.E.2d 379;  People v. Hughes, 31 A.D.2d 235, 296 N.Y.S.2d 671).   Moreover, in making that searching inquiry the magistrate is obliged to recognize that 1st Amendment items are presumptively protected by constitutional guarantees of free speech (see, Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757).   Because their seizure based upon the ideas they contain may constitute a prior restraint, 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, supra, at p. 504, 93 S.Ct. at p. 2801;  Marcus v. Search Warrant, 367 U.S. 717, 730-731, 81 S.Ct. 1708, 1715, 6 L.Ed.2d 1127, supra ).   In applying the 4th Amendment to such items, the court must act with "scrupulous exactitude" (Stanford v. Texas, 379 U.S. 476, 481-485, 85 S.Ct. 506, 509-511, 13 L.Ed.2d 431;  see also, Maryland v. Macon, 472 U.S. 463, ----, 105 S.Ct. 2778, 2780, 86 L.Ed.2d 370). 1
                

The applications consisted of an affidavit of the Sheriff's deputy who rented the 10 cassettes from defendants' store and separate affidavits relating to each film executed by an investigator from the District Attorney's office who had viewed the films after the deputy delivered them to him for that purpose. In each affidavit the investigator identified the film by title, indicated the time required to view it, 80-90 minutes generally, and described the sexual activity shown in some of the scenes. Each affidavit Each affidavit recites that the subject film depicts one or more acts enumerated under section 235.00(1)(b). 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. Thus, some of the affidavits describe only two or three scenes in the movie and others refer to "one scene", "a scene", "another scene", or "a later scene" without any attempt to describe the film as a whole, the continuity of the action or the pervasiveness of the sexual conduct. 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 plot, phrases such as "a middle class white neighborhood", "the home of one of the six girls" or "a high school for girls." 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. Undoubtedly, similar lists could readily be compiled by excerpting descriptions of scenes from books and movies having recognized merit. Stanley Kubrick's "Clockwork Orange" and Federico Fellini's "Satyricon" come quickly to mind.

contained approximately 15-20 typewritten lines describing the film, the descriptions in the two shortest affidavits containing only 11 lines and in the longest one, 27 lines.

The dissent contends that this deficiency is cured because the affidavits allege that certain acts occurred "throughout" the movies (dissenting opn., at pp. 580-581, 493 N.Y.S.2d at pp. 998-999, 483 N.E.2d at pp. 1130-1131). Significantly, the word "throughout" appears in only two of the affidavits. But further than that the statements relied upon are conclusory and patently ambiguous. They may be interpreted as alleging that sexually explicit acts are pervasive in the two films described but they may also be interpreted in other, less inculpatory ways. That being so, the magistrate was required to inquire and clarify the affidavits' meaning and the record does not establish that he did so.

We have previously held that the courts should not analyze applications in a grudging or hypertechnical manner when determining whether they meet constitutional standards (see, People v. Hanlon, 36 N.Y.2d 549, 559, 369 N.Y.S.2d 677, 330 N.E.2d 631, supra, and cases cited therein). We do not suggest otherwise now. Certainly a screenplay need not be annexed to a warrant application nor need the issuing magistrate view the film or even a part of it before approving a warrant. There must be enough information before him in one form or another, however, to enable him to judge the obscenity of the film, not of isolated scenes from it. The affidavits, if that is all that is relied...