striking down a search warrant authorizing seizure of “obscene materials” because it was impossible to execute warrant “with any realistic expectation that the obscene might be accurately separated from the constitutionally protected”
How later courts described this case
- striking down a search warrant authorizing seizure of “obscene materials” because it was impossible to execute warrant “with any realistic expectation that the obscene might be accurately separated from the constitutionally protected”
- disallowing a warrant for the search and seizure of “all ‘obscene’ materials” located at a particular place because a main purpose of the Fourth Amendment was to bar government use of such broad general warrants
- requiring the magistrate to "focus searchingly on the question of obscenity” in the context of a large-scale seizure that would constitute a prior restraint
- expressing concern for the “public’s opportunity to obtain ... publications” because the state’s obscenity seizure law deterred the sale and distribution of speech falling under the First Amendment's aegis
Written by the judges who cited it.
Distinguished
Distinguished by People v. Abronovitz, 62 Misc. 2d 1069 (1970)
As further authority for the court’s position that the Kansas and Marcus decisions are inapposite to a criminal prosecution, the court is cognizant of the failure of this State’s appellate courts to discuss the necessity of a prior judicial hearing in decisions dealing with search and seizure of evidence essential in obscenity prosecutions when, in this court’s view, such an issue would be a threshold consideration.
The opinion
Mr. Justice Black,
whom Mr. Justice Douglas joins, concurring.
The warrant used to search appellants’ premises made no attempt specifically to describe the “things to be seized,” as the Fourth Amendment requires. As the historical summary in the Court’s opinion demonstrates, a major purpose of adopting that Amendment was to bar the Federal Government from using precisely this kind of general warrant to support “unreasonable searches and seizures” of the “papers” and “effects” of persons having possession of them. See especially Entick v. Carrington, 19 Howell’s State Trials 1029, at 1073-1076; Boyd v. United States, 116 U. S. 616, 624-630 ; Frank v. Maryland, 359 U. S. 360, 374 (dissenting opinion). It is my view that the Fourteenth Amendment makes the Fourth Amendment applicable to the States to the full extent of its terms, just as it applies to the Federal Government. See Adamson v. California, 332 U. S. 46, 68 *739 (dissenting opinion). Only last Term we said that in Wolf v. Colorado, 338 U. S. 25 , “it was unequivocally determined by a unanimous Court that the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers.” Elkins v. United States, 364 U. S. 206, 213 . And in Mapp v. Ohio, ante, p. 643, it is said that “[s]ince the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government.” Since the State has used a general warrant in this case in violation of the prohibitions of the Fourth and Fourteenth Amendments, I concur in reversal of the judgment.