Maryland v. MacOn

*472 Justice Brennan,

with whom Justice Marshall joins,

dissenting.

The Court granted certoriari to consider the holding of the Court of Special Appeals of Maryland that the First and Fourth Amendments require evidentiary suppression of certain magazines obtained in the course of an investigation culminating in the warrantless arrest of respondent on obscenity charges. The statute under which the prosecution was brought 1 is, in my view, unconstitutionally overbroad and therefore facially invalid in its entirety. See my dissent in Paris Adult Theatre I v. Slaton, 413 U. S. 49, 73 (1973). For this reason, I would affirm the judgment of the Court of Special Appeals invalidating respondent’s conviction. Even if I thought otherwise with respect to the constitutionality of the Maryland obscenity statute, however, I would not join today’s opinion because I disagree with the Court’s analysis of whether respondent’s warrantless arrest should lead to a reversal of his conviction in this case.

“The use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new.” Marcus v. Search Warrant, 367 U. S. 717, 724 (1961). “The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Id., at 729 . See also Stanford v. Texas, 379 U. S. 476, 481-485 (1965). Thus in enforcing the Fourth Amendment’s command, courts must exercise a “scrupulous exactitude” to ensure that official use of the power to search and seize poses no threat to the liberty of expression. Id., at 485 . In the words of The Chief Justice, “[t]he setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment, *473 invokes such Fourth Amendment. . . requirements because we examine what is ‘unreasonable’ in light of the values of freedom of expression.” Roaden v. Kentucky, 413 U. S. 496, 504 (1973).

An official seizure of presumptively protected books, magazines, or films‘is not “reasonable” within the meaning of the Fourth Amendment unless a neutral and detached magistrate has issued a warrant particularly describing the things to be seized, Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 (1979); Stanford v. Texas, supra, and the probable-cause determination supporting the warrant is based on a proceeding in which the magistrate has the opportunity to “focus searchingly on the question of obscenity,” Marcus v. Search Warrant, supra, at 732 ; see also Roaden v. Kentucky, supra; Heller v. New York, 413 U. S. 483 (1973); Lee Art Theatre v. Virginia, 392 U. S. 636 (1968). These strict requirements reflect a judgment that the inherently difficult decision respecting whether particular material is obscene can under no circumstances properly be left to investigating authorities “engaged in the often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U. S. 10, 14 (1948). The difficulty of applying the arcane standards governing obscenity determinations exacerbates the risk of overzealous use of the power to search and seize. Marcus v. Search Warrant, supra, at 732 . And the consequence of such a seizure is a restraint on the distribution of presumptively protected materials. “[WJithout the authority of a constitutionally sufficient warrant, [seizure] is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.” Roaden v. Kentucky, supra, at 504 .

Because official seizure of allegedly obscene books, magazines, and films requires a prior judicial determination of probable obscenity, it follows that seizure of a person for allegedly distributing such materials must meet the same requirements. A warrantless arrest involves the same diffi *474 culties and poses the same risks as does a warrantless seizure of books, magazines, or films. An officer in the field faces the same daunting task of applying the standards of Miller v. California, 413 U. S. 15 (1973), in determining whether books or magazines offered for sale support a finding of probable cause sufficient to justify the obscenity arrest. And the situation poses the same risk that the officer’s zeal to enforce the law will lead to erroneous judgments with respect to the obscenity of material that is constitutionally protected. Permitting this investigative practice threatens to restrain the liberty of expression in the same way that seizure of presumptively protected material does.

The disruptive potential of an effectively unbounded power to arrest should be apparent. In this case, for example, the arrest caused respondent to usher out patrons and padlock the entrance to the bookstore. As in Roaden the official conduct “brought to an abrupt halt an orderly and presumptively legitimate distribution or exhibition.” 413 U. S., at 504. Several cases from the lower courts make plain that the systematic use of an unbridled power to arrest alone provides a potent means for harassing those who sell books and magazines that do not conform to the majority’s dictates of taste. See, e. g., Penthouse International, Ltd. v. McAuliffe, 610 F. 2d 1353 (CA5 1980); State v. Furayama, 64 Haw. 109 , 637 P. 2d 1095 (1981). Indeed, requiring a warrant for seizures of presumptively protected materials would be pointless if the authorities could achieve an equally effective restraint on distribution by the simple expedient of a warrantless seizure of the seller of such materials.

In Roaden v. Kentucky, supra, this Court required suppression at trial of a film seized incident to a warrantless arrest of a theater owner on obscenity charges. Although the Court today suggests that the infirmity at issue in Roaden was the officer’s failure to obtain a warrant prior to seizing the film, ante, at 468, Roaden never specified whether the seizure of the person or the seizure of the film *475 was invalid for lack of a warrant. What concerned the Court was the absence of any prior judicial determination of probable cause to believe the film was obscene: “Nothing prior to seizure afforded a magistrate an opportunity to ‘focus searchingly on the question of obscenity.’” 413 U. S., at 506. Whether that determination would have formed the basis of an arrest warrant or a warrant authorizing seizure of the film is perhaps immaterial. Roaden does make clear, however, that officials may seize neither persons nor books, magazines, and films without some prior judicial determination of probable cause. That is precisely what happened in the present case, and the warrantless arrest is therefore clearly illegal. The Court today works mischief by unnecessarily throwing this principle into doubt.

The Court compounds the mischief by leaving respondent without an effective remedy for his illegal arrest. The Maryland Court of Special Appeals suppressed the two purchased magazines in part to ensure an effective remedy for the arrest. Holding that the magazines were legally purchased prior to the arrest and therefore can in no sense be considered tainted “fruits” of that arrest, this Court will neither suppress the magazines nor invalidate respondent’s conviction. The Court is of course following precedents, applicable to the run of cases, holding that the illegality of an arrest in itself will not suffice to prevent the introduction of evidence lawfully obtained prior to the arrest, United States v. Crews, 445 U. S. 463, 472-473 (1980), or to invalidate a conviction, id., at 474 ; see also Frisbie v. Collins, 342 U. S. 519 (1952).

When First Amendment values are at stake mechanical application of these precedents is inappropriate. No logical imperative requires the rule of Frisbie v. Collins . Even under the methodology to which this Court has recently wedded itself in United States v. Leon, 468 U. S. 897, 906-908 (1984) — a methodology about which I have grave doubts, see id., at 930 (Brennan, J., dissenting); New Jersey *476 v. T. L. O., 469 U. S. 325, 357-358 (1985) (Brennan, J., dissenting) — the question of the proper remedy for government illegality is a matter of judgment, a balance of the State’s interest in law enforcement and the citizen’s interest in protection from unreasonable official overreaching. See also United States v. Crews, suupra, at 474, n. 20. In most cases the incremental deterrent of invalidating a conviction as a result of an illegal arrest might not justify the added “interference with the public interest in having the guilty brought to book.” United States v. Blue, 384 U. S. 251, 255 (1966). In cases like the present one, however, an additional and countervailing public interest in ensuring the broad exercise of First Amendment freedoms must enter the calculus. For the consequences of illegal use of the power of arrest fall not only upon the specific victims of abuse of that power but also upon all those who, for fear of being subjected to official harassment, steer far wider of the forbidden zone than they otherwise would. Such a result would infringe not only the rights of those who would otherwise engage in such expression but also the rights of those who would otherwise receive such expression. The deterrent to protected expression that such a regime would work demands an effective remedy in the form of invalidation of obscenity convictions based on arrests unsupported by any prior judicial determination of probable cause. Such a rule finds its source in the commands of both the First and Fourth Amendments. See ibid. Cf. Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963). Opting for the contrary course, the Court today sanctions an end run around constitutional requirements carefully crafted to guard our liberty of expression.

I-H HH

The Court’s endorsement of the government’s abuse of the arrest power as a means to enforce norms of taste in written and visual forms of expression is disquieting in its own right because the consequence inevitably will be suppression of *477 protected nonobscene expression. When one recognizes that the same official use of the power to search and seize sanctioned today in its application against the sexual nonconformist can be instantly turned against the political nonconformist, see Stanford v. Texas, 379 U. S. 476 (1965), this decision takes on a particularly ominous cast. These “stealthy encroachments” 2 upon our liberties sanctioned in the State’s present effort to combat vice may become potent weapons in a future effort to shackle political dissenters and stifle their voices. In deciding cases such as this one, the Court would do well to remember that “[uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.” Brinegar v. United States, 338 U. S. 160, 180 (1949) (Jackson, J., dissenting).

I dissent.

Md. Ann. Code, Art. 27, §418 (1982).

Boyd v. United States, 116 U. S. 616, 635 (1886).