Roaden v. Kentucky 8212 1134

• Decision Date: 25 June 1973
• Docket Number: No. 71,71
• Citation: 37 L.Ed.2d 757,413 U.S. 496,93 S.Ct. 2796
• Parties: Harry ROADEN, Petitioner, v. Commonwealth of KENTUCKY. —1134
• Court: U.S. Supreme Court

413 U.S. 496

93 S.Ct. 2796

37 L.Ed.2d 757

Harry ROADEN, Petitioner,

v Commonwealth of KENTUCKY.

No. 71—1134.

Argued Nov. 14, 1972.

Decided June 25, 1973.

Syllabus

A county sheriff viewed a sexually explicit film at a local drive-in theater. At the conclusion of the showing, he arrested petitioner, the theater manager, for exhibiting an obscene film in violation of Kentucky law, and seized, without a warrant, one copy of the film for use as evidence. There was no prior judicial determination of obscenity. Petitioner's motion to suppress the film as evidence on the ground of illegal seizure was denied, and he was convicted. The Kentucky Court of Appeals affirmed, holding that the concededly obscene film was properly seized incident to a lawful arrest. Held: The seizure by the sheriff, without the authority of a constitutionally sufficient warrant, was unreasonable under Fourth and Fourteenth Amendment standards. The seizure is not unreasonable simply because it would have been easy to secure a warrant, but rather because prior restraint of the right of expression, whether by books or films, calls for a higher hurdle in the evaluation of reasonableness. Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313; Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127. This case does not present an exigent circumstance in which police action must be 'now or never' to preserve the evidence of the crime, and where it may be reasonable to permit action without prior judicial approval. Pp. 501—506.

473 S.W.2d 814, reversed and remanded.

Phillip K. Wicker, Somerset, Ky., for petitioner.

Robert V. Bullock, Asst. Atty. Gen. of Ky., Frankfort, Ky., for respondent.

Mr. Chief Justice BURGER delivered the opinion of the Court.

The question presented in this case is whether the seizure of allegedly obscene material, contemporaneous with and as an incident to an arrest for the public exhibition of such material in a commercial theater, may be accomplished without a warrant.

On September 29, 1970, the sheriff of Pulaski County, Kentucky, accompanied by the district prosecutor, purchased tickets to a local drive-in theater. There the sheriff observed, in its entirety, a film called 'Cindy and Donna' and concluded that it was obscene and that its exhibition was in violation of a state statute. A substantial part of the film >>was also observed by a deputy sheriff from a vantage point on the road outside the theater. Since the petitioner conceded the obscenity of the film at trial, that issue is not before us for decision.¹

The sheriff, at the conclusion of the film, proceeded to the projection booth, where he arrested petitioner, the manager of the theater, on the charge of exhibiting an obscene film to the public contrary to Ky.Rev.Stat. § 436.101 (1973).² Concurrent with the arrest, the sheriff seized one copy of the film for use as evidence. It is uncontested: (a) that the sheriff had no warrant when he made the arrest and seizure, (b) that there had been no prior determination by a judicial officer on the question of obscenity, and (c) that the arrest was based solely on the sheriff's observing the exhibition of the film.

On September 30, 1970, the day following the arrest of petitioner and the seizure of the film, the Grand Jury of Pulaski County heard testimony concerning the scenes and content of the film and returned an indictment charging petitioner with exhibiting an obscene film in violation of Ky.Rev.Stat. § 436.101. On October 3, 1970, petitioner entered a plea of not guilty in the Pulaski Circuit Court, and the case was set for trial. On October 12, 1970, petitioner filed a motion to suppress the film as evidence and to dismiss the indictment. The motion was predicated upon the ground that the film was 'improperly, unlawfully and illegally seized, contrary to . . . the laws of the land.' Four days later, on October 16, 1970, the Pulaski Circuit Court heard argument at an adversary hearing on petitioner's motion. The motion was denied.

Petitioner's trial began on October 20, 1970. The arresting sheriff and one of his deputies were the only witnesses for the prosecution. The sheriff testified that the films displayed nudity and 'intimate love scenes.' The sheriff further testified that, upon viewing the film, he determined that it was obscene and that its exhibition violated state law. He therefore arrested petitioner. Together with the testimony of the sheriff, the film itself was introduced in evidence. Petitioner's motion to suppress the film was renewed, and again overruled. The sheriff's deputy took the stand and testified that he had viewed the final 30 minutes of the film from a vantage point on a public road outside the theater. Following this testimony, the jury was permitted to see the film.

Petitioner testified in his own behalf. He stated that, to his knowledge, no juveniles had been admitted to see the film, and that he had received no complaints about the film until it was seized by the sheriff. At the close of his testimony, the jury found petitioner guilty as charged. The jury rendered both a general verdict of guilty and a special verdict that the film was obscene, as provided by Ky.Rev.Stat. § 436.101(8).

On appeal, the Court of Appeals of Kentucky affirmed petitioner's conviction. The Court of Appeals first emphasized that '[i]t was conceded by [petitioner's] counsel in closing argument to the jury that the film is obscene. No issue is presented on appeal as to the obscenity of the material.' 473 S.W.2d 814, 815 (1971). The Court of Appeals then held that the film was properly seized incident to a lawful arrest, distinguishing the holdings of this Court in A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), and Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), on the ground that those decisions related to seizure of allegedly obscene materials 'for destruction or suppression, not to seizures incident to an arrest for possessing, selling, or exhibiting a specific item.' 473 S.W.2d, at 815. It also distinguished Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), on the grounds that film 'had been seized pursuant to a (defective) search warrant, not incident to an arrest.' 473 S.W.2d, at 816. The Court of Appeals relied on a decision of a federal three-judge court in Hosey v. City of Jackson, 309 F.Supp. 527 (Miss.1970), which concluded that:

'[S]eizure of an allegedly obscene film as an incident to lawful arrests for a crime committed in the presence of the arresting officers, i.e., the public showing of such film, does not exceed constitutional bounds in the absence of a prior judicial hearing on the question of its obscenity.' Id., at 533.

The Court of Appeals specifically declined to follow a decision by another federal three-judge court in Ledesma v. Perez, 304 F.Supp. 662 (La.1969), which held unconstitutional the seizure of allegedly obscene material incident to an arrest, but without a warrant or a prior adversary hearing.³

I

The Fourth Amendment proscription against 'unreasonable . . . seizures,' applicable to the States through the Fourteenth Amendment, must not be read in a vacuum. A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 471—472, 91 S.Ct. 2022, 2040—2041, 29 L.Ed.2d 564 (1971); id., at 509—510, 91 S.Ct., at 2059—2060 (Black, J., concurring and dissenting); Id., at 512—513, 91 S.Ct., at 2061 (White, J., concurring and dissenting). The question to be resolved is whether the seizure of the film without a warrant was unreasonable under Fourth Amendment standards and, if so whether the film was therefore inadmissible at the trial. The seizure of instruments of a crime, such as a pistol or a knife, or 'contraband or stolen goods or objects dangerous in themselves,' id., at 472, 91 S.Ct., at 2041, are to be distinguished from quantities of books and movie films when a court appraises the reasonableness of the seizure under Fourth or Fourteenth Amendment standards.

Marcus v. Search Warrants, supra, held that a warrant for the seizure of allegedly obscene books could not be issued on the conclusory opinion of a police officer that the books sought to be seized were obscene. Such a warrant lacked the safeguards demanded 'to assure nonobscene material the constitutional protection to which it is entitled. . . . (T)he warrants issued on the strength of the conclusory assertions of a single police officer, without any scrutiny by the judge of any materials considered by the complainant to be obscene.' 367 U.S., at 731—732, 81 S.Ct., at 1716. There had been 'no step in the procedure before seizure designed to focus searchingly on the question of obscenity.' Id., at 732, 81 S.Ct., at 1716.

The sense of this holding was reaffirmed in A Quantity of Copies of Books v. Kansas, supra, where the Court found unconstitutional a 'massive seizure' of books from a commercial bookstore for the purpose of destroying the books as contraband. The result was premised on the lack of an adversary hearing prior to seizure, and the Court did not find it necessary to reach the claim that the seizure violated Fourth Amendment standards. 378 U.S., at 210 n. 2, 84 S.Ct., at 1725. However, the Court emphasized:

'It is no answer to say that obscene books are contraband, and that consequently the standards governing searches and seizures of allegedly obscene books should not differ from those applied with respect to narcotics, gambling paraphernalia and other contraband. We rejected that proposition in Marcus.' Id., at 211—212, 84 S.Ct., at 1726.

Lee Art Theatre v. Virginia, supra, was to the same effect with regard to seizure of a film from a commercial theater regularly open to the public. There a warrant for the seizure...