Sequoia Books, Inc. v. McDonald, 83-1699
| Decision Date | 06 February 1984 |
| Docket Number | No. 83-1699,83-1699 |
| Parties | SEQUOIA BOOKS, INC., an Illinois corporation, d/b/a Denmark II, Plaintiff-Appellant, v. Charles McDONALD, individually and in his capacity as Sheriff of the County of Kendall, Illinois, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
J. Steven Beckett, Reno, O'Byrne & Kepley, Champaign, Ill., for plaintiff-appellant.
James R. Schirott, Schirott & Elsner, Itasca, Ill., for defendants-appellees.
Before PELL, CUDAHY and POSNER, Circuit Judges.
Sequoia Books, a corporation that owns a bookstore in the town of Aurora, in Kendall County, Illinois, brought this civil rights suit under 42 U.S.C. Sec. 1983 against county law-enforcement officers and the county itself, seeking injunctive relief and damages in respect of the defendants' seizure under warrant of several hundred magazines, movies, and videotapes from the store. The district court denied a motion for a preliminary injunction, and concluding that Sequoia could not possibly establish a right to damages dismissed the complaint in its entirety. Sequoia has appealed, but asks only that the part of the district court's order denying equitable relief (return of the seized magazines and an injunction against future seizures) be reversed. Sequoia acknowledged at argument that it would not be able to prove damages.
The Fourth Amendment provides (so far as pertains to this case) that "no Warrants shall issue, but upon probable cause, ... particularly describing the ... things to be seized." The State of Illinois makes it a crime, see Ill.Rev.Stat.1981, ch. 38, p 11-20, as it may without violating the First Amendment, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), to sell pornography; and there is no doubt that the magistrate who issued the warrant for the seizures from Sequoia's bookstore had probable cause to believe that the materials seized were pornographic. Although he did not have before him copies of any of those materials, he did have a detailed affidavit from a police investigator which described in minute and indeed rather disgusting detail nine magazines that the investigator had read in the store. The least unprintable of the descriptions reads as follows: "Magazine entitled 'Let's F ...' containing therein pictures describing vaginal intercourse, anal intercourse, cunnilingus and fallatio [sic]." The affidavit provided an adequate basis for the "searching review" that the magistrate is required (by such cases as Heller v. New York, 413 U.S. 483, 488-89, 93 S.Ct. 2789, 2792-93, 37 L.Ed.2d 745 (1973)) to undertake before issuing a warrant for the seizure of obscene materials, and established probable cause for the warrant. United States v. Espinoza, 641 F.2d 153, 163-64 (4th Cir.1981); Sovereign News Co. v. United States, 690 F.2d 569, 572 (6th Cir.1982) (dictum).
On the basis of this affidavit the magistrate issued a warrant authorizing the seizure from the store of not only the nine magazines described in the affidavit but any "Magazines, movies and video tapes containing depictions or portion[s] thereof of the following: Cunnilingus, fellatio, anal intercourse, vaginal intercourse, excretion of semen from penis onto other person, masturbation, vaginal or anal insertion of prosthethic [sic] devices, insertion of tongue into anus; which has if considered as a whole a predominant appeal to the pruirent [sic] interest and has no serious educational, literary, artistic or political value and has no socially redeeming value." Sequoia argues that the description was not sufficiently particular to satisfy the Fourth Amendment read in light of the First Amendment, because it did not prevent the officers, incorrectly appraising the educational, aesthetic, or political value of the magazines, movies, and videotapes that Sequoia sells, from seizing items that might be protected by the First Amendment despite their graphic treatment of sex. But the part of the description that refers to value was surplusage, no doubt added by the magistrate simply out of an abundance of caution, and it can be ignored. By confining the officers to seizing materials that contained depictions (in context, photographic) of sexual intercourse and the variants thereof described in the warrant, the warrant satisfied the requirement of particular description; and the inclusion of the language about redeeming values did not broaden, though it may not effectively have narrowed, the warrant's scope.
There was, it is true, a possibility that photographs of sexual acts might be redeemed by aesthetic or other values, and hence that the officers might seize constitutionally protected materials. But the possibility was slight. And it must be remembered that seizure under a warrant is not destruction (a distinction stressed in Heller v. New York, supra, 413 U.S. at 488-93, 93 S.Ct. at 2792-95); it is temporary removal from the owner's possession; the state cannot destroy a magazine as obscene without proving that its prurient character is unredeemed by artistic or other socially valuable properties. The slight possibility of a temporary suppression of constitutionally protected sex magazines is not enough to invalidate the warrant under the Fourth Amendment. Nor would it be feasible to eliminate even this slight possibility by requiring that the warrant name the particular issues of the particular magazines to be seized. The defendant officers would have had to buy every issue of every magazine (and every movie and videotape) that they thought obscene--not just the nine magazines that they described to the magistrate. But their attempts to do so would have aroused Sequoia's suspicions, and it would have refused to sell to them. Or if the officers had reason to believe that Sequoia was warehousing obscene magazines somewhere, under Sequoia's view they could not search the warehouse unless they happened to know the names and dates of particular magazines, and those would be the only items they could seize.
The law does not tie law enforcers' hands so tightly. In re...
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