Wallace v. Wellborn

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-40160

JOE WALLACE, doing business as Video Liquidators

Plaintiff-Appellant

VERSUS

MICHAEL E. WELLBORN, ET AL.

Defendants

LISA SHEPPARD, Department of Public Safety Agent, DANNY

CONTRERAS, Department of Public Safety Agent

Defendants-Appellees

Appeals from the United States District Court

for the Southern District of Texas

February 8, 2000

Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.

DUHÉ, Circuit Judge:

Joe Wallace (“Wallace”), doing business as Video Liquidators,

appeals the district court's order granting summary judgment based

on qualified immunity to Department of Public Safety (“DPS”) Agents

Lisa Sheppard (“Sheppard”) and Danny Contreras (“Contreras”). We

affirm.

I. BACKGROUND

Based on public complaints, Sheppard and Contreras began a

criminal investigation of four adult video stores in Portland,

Texas. Contreras purchased several allegedly obscene videos from

Wallace's store. Sheppard reviewed these videos and concluded that

they met the statutory definition of obscenity.

Thereafter, Sheppard, with the assistance of her supervisor,

drafted and presented affidavits for search and seizure warrants of

the four video stores to the Patricio County Court. She also

drafted the search and seizure warrants. The judge reviewed and

signed a warrant authorizing the agents to search all four stores.

The warrant also authorized the agents to seize all material found

to be in violation of Texas Penal Code § 43.21 et seq., which

outlaws the promotion of obscenity, and Texas Business and Commerce

Code § 35.94(a), which outlaws the sale of videotapes that do not

clearly display the name of the manufacturer on the package cover.

The DPS and other law enforcement agencies served the warrants

on the four stores. Sheppard and Contreras searched Video

Liquidators and seized 2,134 videotapes, 42 magazines, 75 eight-

millimeter movie reels, two birthday cards, and 17 toys as

evidence. The agents seized multiple copies of the same videos,

and they confined the search to the back of the store where the

sexually-orientated material was displayed. They also arrested

Wallace for violating Texas Penal Code § 43.21. Before the

seizure, no judicial hearing to review the videos' content was

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convened. The government tried Wallace twice for violating Texas

obscenity law. A jury did not reach a verdict in Wallace's first

trial, and, in a second trial, a jury acquitted him. After the

verdict the government returned the remainder of Wallace's

property.

Wallace sued under 42 U.S.C. § 1983 for damages against

Contreras and Sheppard. Wallace contends the agents unlawfully

seized the videos from his store without a prior adversarial

judicial proceeding. The agents successfully moved for summary

judgment based on qualified immunity. The district court denied

Wallace's motion for summary judgment.

II. DISCUSSION

We review a summary judgment de novo. Wallace v. Texas Tech

Univ., 80 F.3d 1042, 1046 (5th Cir. 1996). To establish that the

agents are not entitled to summary judgment based on qualified

immunity, Wallace must satisfy a three-part test. First, the

plaintiff must allege the deprivation of a constitutional right.

Second, we must determine whether this right was clearly

established at the time of the alleged violation. Finally, we must

determine whether the record at least gives rise to a genuine issue

of material fact as to whether the defendants actually engaged in

the conduct that violated this clearly established right. Kipps v.

Caillier, 197 F.3d 765, 768 (5th Cir. 1999) (internal citations

omitted).

The general rule under the Fourth Amendment is that any and

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all contraband, instrumentalities, and evidence of crimes may be

seized based on probable cause. Fort Wayne Books, Inc. v. Indiana,

489 U.S. 46, 62-63 (1989). However when First Amendment rights are

implicated, courts must apply “rigorous procedural safeguards . .

. before expressive materials can be seized as 'obscene.'” Id.

(citing Marcus v. Search Warrant, 367 U.S. 717, 732 (1961)).

Therefore, procedural safeguards, including a prior judicial

adversarial proceeding, are usually required in a civil context.

A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 210 (1964).

The Supreme Court has held that there is no absolute right to

a prior adversarial hearing in cases where allegedly obscene

material is seized to preserve evidence in a criminal prosecution.

Heller v. New York, 413 U.S. 483, 488 (1973); United States v.

Echols, 577 F.2d 308, 310 (5th Cir. 1978). After the seizure, a

defendant may request a prompt judicial determination of the

obscenity issue if the seizure was completed without a prior

judicial hearing. Heller, 413 U.S. at 492 n.8.

Based on Heller, the district court concluded that the record

demonstrated that the agents obtained and executed the warrant for

the sole purpose of obtaining and preserving evidence for Wallace's

criminal prosecution. The district court held that Wallace had no

clearly established constitutional right to a prior adversarial

hearing, and the agents were entitled to qualified immunity.

Wallace argues that this case is different than Heller because

that case involved the seizure of one film rather than the seizure

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of more than 2000 videotapes, many of them duplicative. Even

though this case is distinguishable from Heller on the facts,

Wallace still does not enjoy a clear constitutional right to a

prior judicial hearing. First, neither Heller nor Fort Wayne Books

states affirmatively that seizing multiple copies of an item

without a prior judicial proceeding is unconstitutional. Heller,

413 U.S. at 492 n.8 (questioning the need to seize multiple copies

of a film as purely cumulative evidence); Fort Wayne Books, 489

U.S. at 63, quoting Heller, 413 U.S. at 492 (“While a single copy

of a book or film may be seized and retained for evidentiary

purposes based on a finding of probable cause, the publication may

not be taken out of circulation completely until there has been a

determination of obscenity after an adversarial hearing.”).

Second, Contreras stated in an affidavit that it was necessary to

seize the large quantity of evidence because each item was under

Texas law illegal contraband. See also Hicks v. Cassilly, 97-2206,

97-2219, 1998 WL 433299 (4th Cir. July 27, 1998) (unpublished

opinion) (holding that an officer was entitled to qualified

immunity where more than 1,000 items were seized from an adult

bookstore to preserve evidence in a criminal case without a prior

adversarial hearing).

Therefore, Appellant has not shown a clearly established right

to a pre-seizure hearing.

AFFIRMED.

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