Petition — Hodas v. United States
Supreme Court brief1976
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{ JAN 15 J976
IN THE
Supreme Court of the United Stator
OCTOBER TERM, 1975
MICHAL! RODAK IR. CLERK
No. 45" l 00 ]
Martin J. Hopas,
Petitioner,
v.
Unrtep States oF AMERICA.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT CF APPEALS FOR THE
SECOND CIRCUIT
Hersert 8S. Kassner
Attorney for Appellant
122 East 42nd Street
New York, New York
of Counsel:
Kassner & Detsky
TABLE OF CONTENTS
PAGE
NG TR occ ccccecneeecccconusescceccuenons 1
ID, ok i ckchunseendesede nas teneuduheweens 1
I PII oink kT ekk ns dncccacdecevddscewes 2
Constitutional Provisions Involved ................. 3
PE SID 6a dev nccen ov acketaceckénne’s 3
EP PEEP Tee ETT CTE EE ee Teer 4
Reasons for Granting the Writ .................... 7
ID. “50 odes 6s can Nandeed Sead pan eNeaaane 4 29
Appenpix A—Judgment of Affirmance ............. 30
Appenpix B—District Court Opinion Denying Motion
Oe WE ék:c000ubs nee Bx cnesces $s 32
TABLE oF CaSsEs
Acosta v. Beto, 297 F. Supp. 89, affd. 425 F.2d 963,
SE, i, Ge ss Ee 6 oh ob need dedetesticanses 23
A Quantity of Books v. Kansas, 378 U.S. 205 ....13, 17, 27
Aguilar v. Texas, 378 U.S. 108, at 112 (1964) ....... 22
Connolly v. Medalie, 58 F.2d 629, 630 (C.A.2 NY 19) = 23
Entick v. Carrington, 19 How. St. Tr. 1029 (1765) . .26, 27
Frank v. Maryland, 359 U.S. 360 .................. 27
Go-Bart Importing Co, v. U.S., 282 U.S. 344 ........ 27
Gouled v. United States, 255 U.S. 298, 65 L.Ed. 647,
i RP eee erat rr any Petes 25
ii TABLE OF CASES
PAGE
Heller v. New York, 413 U.S. 483 (1973) ...... 7, 10, 11, 22
16, 31, 39
Hodas v. Hogan, 72 Civ. 554 (S.D.N.Y., February 15,
EER EAR eb BR PARE NM met seh ees ae 9,10, 11
Hodas, Levin, et al. v. Murphy, et al., 72 Civ. 554—
SY SO EE la Godaerianueeemoeeek Kenn’ 18
Jones v. U.S., 362 U.S. 267, 4 L.Ed. 2d 697, 80 S.Ct.
Ue ME he Vn ce get ee es 22, 23, 24, 25, 27
Re i rs Ce SE X04 bbb deans Geedeanduee 27
Lee Art Theater v. Virginia, 392 U.S. 6386 .......... 31
Mancusi v. DeForte, 392 U.S. 364 (1968) ....... 12, 22, 23,
24, 26, 29
po BA Me BS rr rrr 32
Marcus v. Search Warrant, 367 U.S. 717 ........... 18
Marron v. United States, 275 U.S. 192 (1927) ...... 27, 28
Near v. Minnesota, 283 U.S. GOT .............. 3, 9,17, 29
Osborn vy. United States, 385 U.S. 323, 17 L.Ed. 2d
ee se cea eedenanekeeeeus 25
People v. Gomez, 73 Mise. 2d 623 .............. 19, 20, 21
People v. Star Distributor, Ltd., Supreme Court, New
York County, N.Y.L.J., January 18, 1973, Page 15
EE de ge ae en ee ee 9,14
Roaden v. Kentucky, 413 496 (1973) ....... 3, 9, 10, 12, 14,
17, 18, 22, 27
i es ee Ss Gn cb ccd vs duuseuviseecees 27
Stacey v. Emery, 97 U.S. 642 (1964) ............... 22
Stanford v. Texas, 379 U.S. 476 (1965) . .2, 9, 10, 12, 13, 14,
15, 17, 18, 25, 26, 27, 28
. TABLE OF CASES ill
PAGE
U.S. v. LaBerge, 267 F. Supp. 686 ................. 23
fF eR” & & S | GPPTITTT Terre 23
U.S. v. Scharfman, 448 F.2d 1352 ........ 14, 15, 17, 28, 29
US. v. Sims, 201 F. Supp. 405 ...........cceecnees 23
Wilkes v. Wood, 19 How. St. Tr. 1153 (1963) ....... 24
Wong Sum v. U.S., 371 U.S. 471 0.0... ee eee eee 32
Sratutes CIreD
ee oe. ee Le uae eens we Kee aee ees 4
Ne eee ee eueKewe Has 4
SEE 3 CuCl a vin needs ueceewhauneeees
United States Constitution
Firet Amendment ............... 2, 3, 9, 10, 11, 12, 13,
15, 16, 17, 18, 22, 25, 28, 29
Fourth Amendment ............. 2, 3, 9, 10, 11, 13, 14,
15, 17, 18, 21, 24, 25, 27, 29
EE ee 2,9
N.Y. Penal Law i ae eid 5, 6, 27
IN THE
Supreme Court of the United States
OCTOBER TERM, 1975
+
Martin J. Hopas,
Petitioner,
v.
Unrrep States or AMERICA.
”%
i
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
Opinions Below
The judgment of the Court of Appeals (App. A, infra,
p. 51) was rendered without written opinion. The Dis-
trict Court judgment was rendered on jury verdict and no
written opinion was entered. The opinion of the District
Court denying petitioner’s motion to suppress is annexed
hereto as App. B, infra, pp. 53-61.
Jurisdiction
The judgment of the Court of Appeals was entered on
December 16, 1975. This Court has jurisdiction under 28
U.S.C.A. 1254(1).
Questions Presented
1. Whether a Judge, in connection with the simultaneous
issuance of two search warrants for the search of two
separate premises, can consider the information set forth
in an affidavit made in application for one such warrant in
connection with the issuance of the other warrant, or
whether the issue of probable cause for the issuance of
each warrant must be determined solely on the basis of the
information set forth in the affidavit applying for such
particular warrant?
2. Whether there is probable cause for the issuance of a
search warrant for all books and records involving the al-
leged violation of a state penal law provision proscribing
the wholesale distribution of obscene materials, on the
basis of an affidavit which alleges that an identically titled
film to that allegedly found on the workshop premises of
the lessee of the premises sought to be searched was
“deemed” obscene in a non adversary proceeding by an-
other Judge nearly one month prior to the date of the
application for the warrant, which film was never asserted
to have been found obscene in an adversary proceeding
thereafter, and which film was not subjected to prior
scrutiny by the Judge issuing the warrant for the search
of books and records of the alleged wholesaler thereof?
4. Whether a warrant for the search and seizure of all
of the books and records of an exhibitor of expression pre-
sumptively protected by the First Amendment at a speci-
fied premises which evidence the commission of a crime
of wholesaling obscene material, constitutes a general war-
rant in violation of the First, Fourth and Fourteenth
Amendment under the doctrine of Stanford v. Texas, 379
U.S. 4761
6. Whether the seizure of virtually all of the books and
records of an entity involved in the exhibition of expres-
3
sion presumptively protected by the First Amendment,
necessarily resulting in the closing of the business, in-
volves a total prior restraint within the doctrine of Near
v. Minnesota, 283 U.S. 697, in violation of the First
Amendment, and, as such, an unreasonable search and
seizure within the meaning of the Fourth Amendment as
construed in Roaden v. Kentucky, 413 U.S. 496?
Constitutional Provisions Involved
1. First Amendment
‘‘Congress shall make no law . . . abridging the free-
dom of speech, or of the press . . .”
2. Fourth Amendment
“The right of the People to be secure in their per-
sons, houses, papers and effects, against unreason-
able searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.’’
Preliminary Statement
Martin J. Hodas, appeals from a judgment of the U. S.
Court of Appeals for the Second Circuit, entered Decem-
ber 16, 1975, affirming a judgment entered in the United
States District Court for the Southern District of New
York (Metzner, J.) on July 24, 1975, convicting him of
an attempt to defeat and evade $65,397.37 in corporate
income taxes due and owing to the United States of Amer-
ica for the fiscal vear ending February 28, 1969, said taxes
being owed by East Coast Cinerama Theatre, Ine., a New
York corporation and convicting him of causing to be
made, and subscribing to, a corporate income tax return
4
which he did not believe to be true and correct as to every
material matter, said return being for the corporation
designated above and for the taxable year designated.
Defendant Martin Hodas therefore stands convicted of
violations, respectively, of Section 7201 of Title 26 of
the United States Code, and Section 7206 of Title 26 of
the United States Code.
The indictment presented in this case contained three
counts, the first of which was a conspiracy count relat-
ing to the substantive violations alleged in Count 2. Mr.
Hodas was acquitted of the Count 1 conspiracy charges,
as was his co-defendant, Herbert J. Levin, who was him-
self acquitted of all three counts.
On May 19 and May 20, 1975, in the District Court, a
hearing was conducted by Judge Metzner to inquire into
the facts and circumstances surrounding searches con-
ducted by New York police officers on January 27 and
January 28, 1972 at two physical locations, namely, 210
Fast 42nd Street in New York City and 113 East 42nd
Street in New York City during the course of which
searches physical evidence critical to the case of the United
States Government under this indictment, namely, cer-
tain duplicate books and records of East Coast Cinerama
Theatre, Inc., were seized by those New York City police
officers, copied, and turned over to the Internal Revenue
Service of the United States and were eventually employed
in the presentation of evidence by the United States of
America, and are specifically referred to in Count 1 of the
indictment.
Statement of Facts
(1)
On January 27, 1972, Detective Donald Gray of the
New York City Police Department, together with officers
of that Department (6), acting pursuant to a search
5
warrant issued by Judge Hyman Solniker of the New York
City Criminal Court, proceeded to the ‘‘ Black Jack’’ book-
store at 210 West 42nd Street in the County of New York.
In the course of the authorized search of said prem-
ises for ‘‘business records’’ relating to the sale of an
allegedly obscene book, Detective Gray entered into a
separated and segregated rear of the ground floor at 210
West 42nd Street and conducted an edditional search of
that area and interrogation of an employee of East Coast
Cinematies, Inc., lessee of that rear area, working therein.
During this second and separate search and inquiry con-
ducted under the ostensibie cloak of authority of Judge
Solniker’s warrant, Detective Gray and other oflicers seized
various boxes of film, each box marked on the outside with
a different name, and brought these films to Judge David
Weiss of the New York City Criminal Court for his review.
Without any indication on the face of the warrants of a re-
view of these two films brought to him, and without any
determination of the obscenity thereof, but solely upon
the affidavits of Detective Gray, Judge Weiss issued
two further search warrants. The first of these additional
warrants authorized the search for, and seizure of the three
films mentioned in the affidavit for the warrant to seize
at 210 W. 42 St.
The second additional warrant authorized a search of
the offices of East Coast Cinematics, Inc. on the 17th floor
at 113 West 42nd Street in New York County for books
and records of that corporation reflecting a ‘‘peep show”
business in violation of Section 235.06 of the Penal Law
of New York State. This warrant was based solely on
the statement of Det. Gray that a film that had not been
produced for scrutiny by Judge Weiss was found at 210
W. 42 St. and bore the title (Sex Nurse) of a film which
had been “deemed” obscene by another judge nearly one
month before in another case in the course of a non-
adversary application for a search warrant.
6
In the execution of the warrant to search the corporate
offices of East Coast Cinematics, Inc., Detective Gray and
other officers forced an entry into said offices and com-
menced a search of same for all books and records indi-
cating a violation of the New York Penal Law involving
the wholesale distribution of obscene material. In the
course of conducting this search, and upon his initial
entry into the premises, Detective Gray observed a list-
ing of the names of various corporate entities which he
assumed were housed with the offices of East Coast and
concluded that the intermingling of books and records and
related business materials of these corporations within the
17th floor premises rendered a seizure of the material man-
dated in the original warrant totally impractical.
As a result of the above conclusion Detective Gray
swore out an additional affidavit and returned to the New
York City Criminal Court, this time to Judge William
Shea from whom he obtained a warrant authorizing him
for all practical purposes to seize every item in the offices
of East Coast Cinematies, Inc. and related corporations.
Testimony at the hearing on the suppression issue pre-
sented by the defendant seemed to place in evidence the
inter-relationship of the work shop area at 210 West 42nd
Street with the office area at 113 West 42nd Street, Mr.
Herbert Levin, an employee of Mr. Hodas, frequently
visited this work shop area and supervised activities
therein. Employees of East Coast Cinematies, Ine. fre-
quently made trips between , 7 premises to pick up or
deliver the various work products of the shop. Martin J.
Hodas also repeatedly and regularly visited these work
shop premises.
The search conducted by Detective Gray and his fellow
officers of the East Coast offices at 113 West 42nd Street
resulted in the seizure of virtually every document, instru-
ment, book, reeord and numerous personal articles which
were to be found therein.
7
Detective Gray testified that the office areas were open
and not segregated in any way and it appears from his
testimony that there was a free flow and movement of em-
ployees within these offices and that areas reserved for the
use of given individuals were not visibly demarcated as
such.
Reasons for Granting the Writ
During the suppression hearing cross-examination of
Detective Gray (upon whose affidavits the warrants for
the search of appellant’s two premises were based) he testi-
fied quite conclusively and repeatedly that he seized three
films from the premises and brought them to Judge Weiss
for the purpose of having warrants issued to search and
seize from defendant’s premises at 210 West 42nd Street
and 113 West 42nd Street. On redirect, he changed his
story and stated that he did not take any of the three films
from the premises, but rather obtained two copies of prints
with the same names which had been seized in other raids
on other stores and brought them before Judge Weiss. The
Court tota!ly ignores the unequivocating testimony of De-
tective Gray repeatedly uttered on cross-examination and
finds as a fact his recanted testimony. Furthermore, the
opinion below does not even comment on the fact that there
is no indication from the face of Judge Weiss’ warrant for
the search of 210 West 42nd Street that he viewed the two
films that were brought to him and found them obscene
prior to issuance of the warrant. Without such viewing
and finding it cannot be doubted that the warrants would
be invalid under the doctrine of Heller v. New York, 413
U.S. 483 (1973). Furthermore, since Gray recanted his
testimony with respect to the film “Sex Nurse” and denied
on redirect examination having brought that film before
Judge Weiss, and since that film was the only film men-
tioned in the warrant for the search of 113 West 42nd
Street issued by Judge Weiss, it must be concluded that the
Judge could not have-possibly viewed the film and deter-
8
mined its obscenity for purposes of issuing that warrant
out of which all of the evidence in the instant trial was
secured. This, too, is ignored by the Court below in its
opinion, It cannot be overemphasized that not only did the
warrant for the search of 113 West 42nd Street issued by
Judge Weiss not set forth that he had viewed the film
mentioned in the warrant (“Sex Nurse”) and determined
that it was obscene, but Detective Gray, in testimony ac-
cepted by the Judge below, his redirect testimony, ad-
mitted that he never brought the film for serutiny to Judge
Weiss. The Court below seems to rest its finding as to
this warrant on the “deeming” which had taken place a
month earlier in connection with another film of the same
name brought to another judge. The Court, however,
failed to explain how it could depend upon such deeming
when a warrant issued by that prior Judge over ten days
before the seizure in the instant case could not have been
used to make the seizure in the instant case even if the
premises had been described in that warrant since, by its
terms, it was only effective for 10 days.
The testimony at the hearing clearly indicated that there
had never been a determination of the obscenity of the film
‘*Sex Nurse’’ to the knowledge of Detective Gray to the
date of the hearing. It had never been found obscene by
any Judge at any time. Notwithstanding the foregoing,
the Court below upheld the seizure of all of the books and
records of defendant at 113 West 42nd Street, records
which supplied the essential testimony for the conviction
of defendants herein, on the basis of the mention therein of
one film, ‘‘Sex Nurse’’, which the Judge did not even see
prior to the issuance of the warrant, which had not been
the subject of an adversary proceeding to that date, which
has not been the subject of an adversary hearing to this
very day, and which does not even appear on the inventory
return as having been seized.
The trial Court concluded that defendant had stand-
ing to challenge both the warrant issued and the exe-
9
cution of that warrant as to 113 West 42nd Street.
This is the premises in which the materials sought to be
suppressed were found. The Court skips over the “deem-
ing” issue and the fact that Judge Weiss never saw the
film “Sex Nurse” which was the basis for the issuance of
the warrant to search and seize the books and records of
East Coast from 113 West 42nd Street. He finds that he
need not discuss that issue since the seizure of all of the
books and records of a corporation pursuant to a warrant
which does not designate specifically which books and
records are subject to seizure does not violate First
Amendment principals against prior restraint as incor-
porated into the Fourth Amendment. Totally ignored is
a line of cases commencing with Near v. Minnesota, 283
U.S. 697 (1931) and running through Stanford v. Texas,
379 U.S. 476 (1965) and Roaden v. Kentucky, 413 U.S. 496
(1973). The trial Court could not visualize a business en-
gaged in the dissemination of First Amendment material
being shut down and closed through the seizure of all of
its books and records. This is exactly what happened in
the instant case and exactly what was condemned in a
companion case by the Courts of the State of New York.
People v. Star Distributors, Ltd.—Supreme Court, New
York County, N.Y.L.J., January 18, 1973, Page 15, Col-
umn 6 (Martinez, J.). The massive seizure under the
Weiss warrant for the search and seizure of all books and
records of East Coast was condemned by this Court and
the materials ordered returned. Hodas v. Hogan, 72 Civ.
554 (S.D.N.Y., February 15, 1972—Bauman, J.). Judge
Bauman appreciated that the seizure at 113 West
42nd Street was a massive seizure in violation of the
First, Fourth and Fourteenth Amendments, a seizure
which required immediate return of that which was seized.
While it is true that Judge Bauman in Hodas v. Hogan
did not have the benefit of the Supreme Court decision in
Roaden v. Kentucky, swpra, and, therefore, insisted upon
ensuring the right of the People of the State of New York
10
to secure that materia! as future evidence, the Court below
was in no such position. In Roaden it was clearly held
that a seizure in violation of the First Amendment
is an unreasonable search and seizure under the Fourth
Amendment and that any tenuous distinctions there-
tofore made by various Courts could no longer be sus-
tained. Thus when the Court below held that the pur-
pose behind such holdings as that in Hodas v. Hogan,
supra, is to avoid prior restraint but not to sanction sup-
pression, it was making a finding directly in violation of
Roaden. Roaden recognized that the only way to ensure
against prior restraints of expression was to treat such
prior restraints in the same manner as any other unlawful
searches and seizures, by suppressing the use of the ma-
terial seized. The attempt by the Court below to utilize
the Heller ruling to justify the warrant for the search of
113 West 42nd Street manifests an utter and. complete
lack of comprehension of Heller. In Heller, the Judge
issuing the warrants scrutinized the entire film, found it
obseene, and issued the warrant for the arrest of its ex-
hibitor and its seizure. In the instant case Judge Weiss
did not see the film which was the basis for the issuance
of the warrant, and then issued a warrant for the seizure
of all of the books and records of the alleged “distributor”
of the film.
The Trial Court then goes on to state that affidavits
for warrants must be construed liberally and flexibly.
This begs the question. It is not solely the affidavit for
the warrant that presents the problem in this case, but
also the warrant itself. Nowhere does the Court cite the
hornbook law that a warrant must specifically state and
identify the place to be searched and the matter to be
seized. When First Amendment rights are involved, par-
ticularization of the matter to be seized becomes even
more essential. This is why Stanford held the warrant
in that case to be a general warrant and all matters seized
to be suppressible. This is why Roaden cites Stanford
11
when incorporating the First Amendment principles of
search and seizure into the Fourth Amendment.
In his opinion (App. B, infra, p. 60) the trial Judge
below attempts to muddle and entwine the two applications
for the two separate warrants, one for the search at 113
West 42nd Street, and the other for the search of 210 West
42nd Street. He argues that the viewing by Judge Weiss of
the two films in connection with the affidavit for the search
of 210 West 42nd Street and the deeming of Judge Weiss
that such films were obscene (despite the fact that there
is no recitation in the warrant of such viewing and deter-
mination), somehow justified the issuance of the warrant
based on another application for the search of 113 West
42nd Street. No case is cited by the Trial Court for this
novel theory of judging the adequacy of a warrant on the
basis of material other than the contents of the affidavit
seeking such warrant and the warrant itself. The reason
is simple, there is no authority for such action.
At the end of the Opinion below (App. B, infra, p. 61)
the Court feels compelled to explain why Judge Bauman’s
decision in Hodas vy. Hogan, supra, is not controlling or
even persuasive. It is stated that the intervention of
Heller v. New York, supra, “prevents the operation of col-
lateral estoppel”. It is respectfully submitted, as has been
noted heretofore, that Heller has absolutely nothing to do
with the facts of the instant case. All Heller held was
that no adversary proceeding was required prior to the
seizure of a single copy of expressive matter where there
has been prior judicial scrutiny of the matter, a deter-
mination by the Judge of its obscenity, and the granting
to the seized party of a reasonably prompt adversary
hearing after the seizure. The warrant for the seizure of
all of defendant’s books and records was not preceded by
prior judicial serutiny of expressive matter, a determina-
tion of obscenity, and a prompt opportunity for an ad-
versary hearing. Heller has no relation whatsoever to
12
the massive seizure of books and records in the instant
case. The only recent case that does have a definite relation
to the seizure at 113 West 42nd Street in Roaden v. Ken-
tucky, supra.
The Trial Court decision below coneludes with a state-
ment that the seizure of business records is essential to the
proving of a crime of wholesale promotion of obscene ma-
terials. It is respectfully submitted that this does not jus-
tify the wholesale seizure effecting a prior restraint. There
are many things that the government would like to seize
and that might help the government prove a case against a
particular defendant, but which may not be seized in the
particular manner which the government attempts to pur-
sue. To follow the Trial Court’s reasoning, it is permis-
sible to burn the house to roast the pig. It is respectfully
submitted that this is not the law, that the State Court
Judge who suppressed the evidence of the instant case and
the Federai Court Judge who found a massive seizure
warranting return of the material were both correct, and
that the Trial Court below erred by failing to be guided
by their determinations and the sound constitutional prin-
ciples which underlay such determinations.
Since the case of Stanford v. Kentucky, supra, is crucial
on the issue of whether or not the 113 West 42nd Street
warrant was a general warrant and, hence, void on its face,
it should be noted that the Trial Court’s understanding
and review of that case was superficial to say the least.
Judge Weiss’s warrant for the search of 113 West 42nd
Street did not specify with any particularity which records
of defendant were or were not to be seized. It, therefore,
left to the unfettered diseretion of the police officers ex-
ecuting the warrant the determination of what material ef-
fecting the distribution of expressive matter presumptively
protected by the First Amendment should and should not
be seized. A cursory glance at the inventory of things
seized reflects the gravaman of such a procedure and the
13
reason why the Fourth Amendment and the statutes of
the State of New York require specificity of “things to
be seized” and not merely specificity of places. The lan-
guage of the 113 West 42nd Street search warrant cannot
be differentiated from the search warrant which Stanford,
supra, unanimously held void as a general warrant.
In Stanford, supra, under Texas Law, Texas outlawed
various activities of the Communist party just as New
York outlaws “obscenity”. A District Court Judge in
Texas authorized a search for and seizure of the books and
records concerning the operations of the Communist party.
The Supreme Court in Stanford described the search
warrant as follows (379 U.S. at 478, 479):
7 . a place where books, records, pamphlets, cards,
receipts, lists, memoranda, pictures, recordings and
other written instruments concerning the Communist
Party of Texas, and the operations of the Communist
Party in Texas are unlawfully possessed . . .”’
Stanford unanimosuly held the search warrant overbroad
and void as a general warrant.
Stanford emphasized that the particularity was specially
required where the “things” to be seized consisted of books
and records of those engaged in the exercise of First
Amendment rights (379 U.S. at 485), citing the classic First
Amendment obscenity case of A Quantity of Books v.
Kansas, supra, 378 U.S. 205. Stanford held the Courts
must he even more careful where the business records and
ledgers dealt with one exercising First Amendment rights
as opposed to one keeping invoices and records of stolen
property (379 U.S. at 485 Nt. 16).
The Court said (379 U.S. at 485):
‘‘In short, what this history indispensably teaches is
that the constitutional requirement that warrants must
particularly describe the ‘things to be seized’ is to be
14
accorded the most scrupulous exactitude when the
‘things’ are books, and the basis for their seizure is
the ideas which they contain. See Marcus v. Search
Warrant, 367 U.S. 717; A Quantity of Books v. Kansas,
378 U.S. 205. No less a standard could be faithful to
First Amendment freedoms.”
‘‘The requirement that warrants shail particularly
describe the things to be seized makes general searches
under them impossible and prevents the seizure of one
thing under a warrant describing another. As to what
is to be taken, nothing is left to the discretion of the
officer executing the warrant.” (Italies supplied)
Stanford held the warrant void.
People v. Star Distributors, Ltd., et al., Sup. Ct. New
York County, N.Y.L.J. 1/18/73 Page 15 Column 6
(Martinez, J.) involved exactly the same principle and a
seareh warrant which as far as books and records were con-
cerned was as broad as the warrant here involved. The
Court granted the motion to suppress on the basis of
Stanford v. Texas.
It should he noted that Stanford was emphatically relied
on and quoted with approval in Roaden v. Kentucky, supra,
413 U.S. 496, at 504 (1973), the most recent decision of the
Supreme Court dealing with search and seizure in the area
of obscenity.
The Court of Appeals affirmed from the bench, without
written opinion, holding that U. S. v. Scharfman, 448 F2d
1352, controlled this case without regard to First Amend-
ment principles.
The basie error of the Court below was its failure to
recognize the holdings of Roaden v. Kentucky, 413 U.S.
496, and Stanford v. Texas, 379 U.S. 475, that the Fourth
15
Amendment must be read in the light of First Amendment
principles when the warrants are directed at material pre-
sumptively protected by the First Amendment and books
and records of the disseminators of such material.
In the course of oral argument before the Court of
Appeals, it became apparent that the Court intended to
uphold the Weiss warrant for the search of 113 West 42nd
Street on basic Fourth Amendment principles without re-
gard to First Amendment implications arising from the
fact that matter presumptively protected by the First
Amendment gave rise to the issuance of the warrant and a
business involved in the exhibition of such material was the
subject of a total prior restraint by reason of such issu-
ance and execution.
When a member of the panel asked the attorney for the
appellant why they could not consider the affidavit sub-
mitted in connection for the application for a warrant to
search and seize at 210 West 42nd Street in conjunction
with the application for a warrant to search and seize
at 113 West 42nd Street, both affidavits having been sub-
mitted simultaneously in connection with the application
to Judge Weiss for the two warrants, and why the testi-
mony at the suppression hearing could not bolster the affi-
davits on the issue of probable cause to issue the warrant,
it became apparent that the determination of the Court
below would be upheld on the basis of clearly erroneous
principles.
Similarly, when in the course of argument, the panel
made it apparent that it was bound by the Second Circuit
opinion in U. S. v. Scharfman, 448 Fed. 2d 1352, and was
unwilling to draw a distinction between stolen furs, con-
traband per se, and motion picture films presumptively
protected by the First Amendment, the oral opinion of the
Court rendered from the bench, relying on Scharfman
and ignoring Stanford v. Texas, 379 U.S. 476, came as no
surprise.
16
When, in the course of oral argument, appellant’s coun-
sel suggested to the panel that, at the very least, the
warrant for the search at 113 West 42nd Street should
have been limited to the search for books and records
involving the exhibition and distribution of the one al-
legedly obscene film mentioned in the affidavit seeking
such warrant, no response from either the panel or the
Assistant United States Attorney to such observation and
contention was made. When it was called to the atten-
tion of the panel that the one film mentioned in the affidavit
seeking the warrant for the search of 113 West 42nd Street
was neither brought before the Judge for the purpose of
prior judicial scrutiny nor even seized as authorized by
the 210 West 42nd Street warrant or mentioned in the re-
turn thereon, facts which the police officer making the
seizure could not explain in his suppression hearing testi-
mony, no response or explanation was forthcoming from
the United States Attorney.
It cannot be overemphasized that the Court of Appeals
upheld the search and seizure of all books and records at
113 West 42nd Street as if the unseen, unfound and un-
seized film ‘‘Sex Nurse” were narcotics or explosives
actually found to have been stored and possessed by appel-
lant. If this search and seizure is upheld, all a police
officer need do to obtain a warrant to search and seize ail
of the books and records of a business involved in the
exhibition or dissemination of films or literature presump-
tively protected by the First Amendment, is to state that
he found one such book or film in another premises con-
trolled by such business which film or book has the same
title as a film or book theretofore deemed obscene by an-
other Judge in a non adversary proceeding at a time when,
had the other Judge issued a search warrant, it would
have been stale for the purposes of execution. The police
officer could mention the name of any film or book, since
the fact that he failed to seize it and list it on the inventory
was not considered probative.
17
The implications of this precedent are devastating.
Should this procedure be sanctioned, the entire body of
law forbidding prior restraint, commencing with Near v.
Minnesota, 283 U.S. 697, and A Quantity of Books v. Kan-
sas, 378 U.S. 205, through Roaden v. Kentucky, supra, and
Stanford v. Texas, supra, will have been effectively abol-
ished, and books and films will have become contraband
per se, subject to doctrines such as that enunciated in
U.S. v. Scharfman, supra, which effectively upholds the
issuance of a general warrant so long as a particular
penal law section is incorporated in the search authoriza-
tion portion of the warrant. It is foreseeable under such
circumstances that, at some time in the future, should a
newspaper or publisher print material which an official con-
siders libelous, such official could procure a warrant from a
Magistrate which would authorize the search and seizure
of virtually all of the books and records of such publisher
or newspaper which indicate the commission of the crime
of criminal libel. The fact that this would certainly shut
down the publisher or newspaper would not be considered
relevant by the United States Court of Appeals for the
Second Cireuit which would cite U. S. v. Scharfman as
authority for the issuance of the said warrant.
It is respectfully submitted that the incarceration of an
alleged income tax evader for one year, laudable as it may
seem, does not justify the establishment of the precedent,
which the perfunctory affirmance by the Court of Appeals
herein has engrafted upon First Amendment law. It can-
not be assumed that the precedential effect of this ruling
will be ameliorated by discriminatory law enforcement.
It is no longer a subject of debate that a search and
seizure in violation of the First Amendment constitutes
an unreasonable search and seizure within the meaning
of the Fourth Amendment. Roaden v. Kentucky, 413 U. 5.
496 (1973). In Roaden, the Supreme Court put to rest any
distinction between the remedies for First and Fourth
18
Amendment violations, by saying at page 504:
‘‘Such precipitant action by a police officer, with-
out the authority of a constitutionally sufficient war-
rant, is plainly a form of prior restraint and is,
in those circumstances, unreasonable under Fourth
Amendment standards. The seizure is unreasonable,
not 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 inzher hurdle in the evaluation of reasonable-
ness. The setting of the book store or the commer-
cial theater, each presumptively under the protection
of the First Amendment, invokes such Fourth Amend-
ment warrant requirements because we examine what
is ‘unreasonable’ in the light of the values of freedom
of expression.’’ Citing and quoting Stanford v. Texas,
379 U. 8. 476, 485.
Thus, it is clear, that if the searches, seizures and war-
rants were violative of the First Amendment, they are
unreasonable under the Fourth Amendment and result in
the suppression of the material obtained thereby.
The District Court ruling on precisely these facts, had
already determined that the seizure of all of the material
from defendants’ premises at 210 West 42nd Street and
113 West 42nd Street involved an unlawful search and
seizure under the First Amendment. Hodas, Levin, et al.
v. Murphy, et al., 72 Civ. 554—February 15, 1972—Bau-
man, J. Merely by reason of the foregoing, and for no other
reason, all of the matter covered by Judge Bauman’s de-
cision and returned pursuant to Judge Bauman’s unap-
pealed order should have been suppressed. The warrant
upon which the search of defendants’ premises at 210
West 42nd Street was based was founded upon an affidavit
of Detective Donald Gray which sought the seizure of
three specific films which the said detective claims he ob-
served in his prior search of the premises. The affidavit
19
asserted that a film with the same title (‘‘Sex Nurse’’)
had been subjected to a prior judicial scrutiny by an-
other judge (Judge Haft) on another date (December 29,
1971—nearly one month before) in connection with some
unspecified other proceeding and had been ‘‘deemed ob-
scene’ at that time. As to the other two films sought to
be seized, the affidavit alleges neither prior judicial seru-
tiny nor a determination of obscenity after an adversary
hearing. It is clear from the affidavit which sought the
seizure of the three films at 210 W. 42 St., that they had
not yet been seized from defendant’s premises. This affi-
davit is apparently contradicted by the subsequently
recanted testimony of Detective Gray on cross-examination
in which he first claimed to have seized the films from the
workshop and brought them before Judge Weiss.
As to the warrant for the search of 113 W. 42 St., all
that supported it was the assertion that a film with the
same name as that on a box at 210 West 42 St. (Sex Nurse)
had been deemed obscene by another judge in a non-adver-
sary proceediug with respect to another party almost 30
days before.
It cannot be asserted that the prior judicial scrutiny
by another judge at another time in connection with an-
other proceeding of a similarly entitled film to one of
the films seized pursuant to Judge Weiss’ warrant legal-
izes the warrant and the seizure herein. It was the posi-
tion of the District Attorney of New York County and
the police department until the middle of 1973 that once
a judge scrutinized a film or book and determined that
there was probable cause to believe it obsecene, the title
of that film and book could be put upon a list and the
police, through warrantless searches of premises exhibit-
ing such films and selling such books, could seize such
‘*deemed’’ films or books whenever they would come across
them. This situation came to a head in the case of People
v. Gomez, 73 Mise. 2d 623, when the illegality of the pro-
20
cedure was directly challenged. In that case which was not
appealed by the People, Judge Levittan held at page 625-6;
‘‘In the instant prosecution the People contend that
prior judicial scrutiny is alone sufficient, without a
warrant specific to this prosecution as long as the
prior scrutiny was facilitated by an unrelated war-
rant. The issuance of a warrant is not merely auxil-
iary to ex parte scrutiny and a finding of obscenity.
Rather, the purpose of the prerequisite judicial scru-
tiny is to generate the warrant. The scrutiny is
necessary to justify the warrant which is necessary
to authorize the seizure. The scrutiny and ex parte
finding are not a substitute for the warrant itself nor
an excuse from obtaining it for each separate seizure.
“Apart from the constitutional and statutory indis-
pensibility of a warrant for each seizure in this area
sought by police authorities, the practice of using a
warrant issued by a judge for a specific seizure as an
imprimatur for other seizures not presented to that
judge for his approval, is not to be sanctioned. Sepa-
rate application for each seizure sought by the police
is not burdensome to the court, nor, if it were, would
it for that reason be indispensable.”
The police department has abandoned the procedure used
in the instant case and is no longer asserting the right to
seize “deemed” films without a specific warrant for such
seizure in a specific place signed by a judge who has viewed
the film and determined the probable cause to believe the
film obseene. It is this abandoned procedure which is
the foundation for the warrant for the search of defend-
ants’ premises at 210 West 42nd Street and 113 West 42nd
Street. It cannot be overemphasized that the procedure
used in obtaining the warrant in the instant case has been
conceded by the state authorities (by their failure to ap-
peal in Gomez and their abandonment of the procedure)
21
to be an unconstitutional Fourth Amendment violation
warranting suppression. Just as the court suppressed in
Gomez so should this court suppress herein.
The only relevant allegation in the affidavit of Donald
(Giray in support of the warrant to searen 113 W. 42 St.
is the same statement about a film entitled “Sex Nurse”
having been deemed obscene theretofore by another judge
in another proceeding. Judge Weiss signed a search war-
rant for the seizure of all books and records of East Coast
Cinematies, Inc., at 113 West 42nd Street on the basis of an
assertion relating to a film which he bad not viewed and
determined to be probably obscene, and which film was
never seized (though the 210 warrant called for such
seizure), indicating that it never existed at 210 West 42nd
Street.
It should be noted that even had another judge in an-
other proceeding found a film entitled “Sex Nurse” prob-
ably obscene after judicial scrutiny of the film, the only
purpose of such finding would be to issue a warrant for
seizure or arrest in order to facilitate the prompt adver-
sary hearing upon which the said film could be determined
to be obscene vel non. Since that viewing took place on
December 29, 1971, even if a warrant were issued at that
time, it would have expired upon the execution thereof
or within ten days, whichever first took place. It could
not under any circumstances have been utilized as the basis
for any subsegeunt seizure, Lastly, as Gomez held, it cer-
tainly could not relieve any other judge of his constitu-
tional obligation to view the film and determine the proba-
bility of obscenity prior to issuance of a warrant for its
seizure from another place at another time. The only
thing that could have relieved him of such responsibility
would have been a determination of obscenity of said film
after an adversary proceeding.
The law as to the minimum requirements for a deter-
mination of ‘‘probable cause’’ for the issuance of a war-
22
rant is clear in its articulation of a general standard, but
mandates intensive analysis of the facts in a given case.
The general definition of probable cause can be stated as
facts sufficient, in the circumstances, to lead a reasonably
disereet and prudent man to believe that contraband is
present, or a crime is being or has been committed, or that
the law is being violated on the premises to be searched.
See, e.g., Stacey v. Emery, 97 U.S. 642, at 645 (1964).
It has further been pointed out by the United States
Supreme Court that facts and circumstances underlying
the deponent’s affirmation of probable cause must be
spelled out. See, e.g., Aguilar v. Texas, 378 U.S. 108, at
112 (1964).
Officer Gray attempted to set forth such facts and cir-
cumstances in his affidavit. The only facts presented to
the issuing judicial officer is that one (1) of the boxes bore
a title of a film as to which a criminal court judge nearly
one month before had found probable cause to believe
obscene; (2) an undescribed snapshot of that film was
affixed to the outside of that one box. All the remaining
language in the affidavit is conclusionary or expresses un-
substantiated ‘‘belief’’ of the deponent.
We submit that particularly in the circumstances of a
presumptively First Amendment protected activity such as
film exhibition and distribution, the affidavit does not state
sufficient facts with any particularity sufficient to constitute
“probable cause”.
We urge the Court to find a failure of probable cause
for the issuance of a warrant since the facts in Affidavit
No. 2 do not substantiate anything greater than a mere
vague suspicion of participation in criminal activity.
It cannot be overemphasized that judicial scrutiny must
precede the search and seizure not follow it. Heller v. New
York, 413 U.S. 745; Roaden v. Kentucky, 413 U.S. 757.
23
On the issue of what may be considered in determining
probable cause for the issuance of the 113 W. 42 St. war-
rant, only that affidavit in support thereof and the war-
rant itself can establish probable cause, U.S. v. Roth, 391
F.2d 507; Acosta v. Beto, 297 F. Supp. 89, affd. 425 F.2d 963,
cert. den. 400 U.S. 928; U.S. v. LaBerge, 267 F. Supp. 686;
U.S. v. Sims, 201 F. Supp. 405.
Officer Gray’s sworn statement contains numerous refer-
ences to the “peep show” business. Clearly, the “peep
show” business is not an illegal enterprise, per se. This
fact renders certain assertions of the affiant puzzling in
their support of the warrant. For example, Deponent
(Gray) refers to an informant who has told him that books
and records (of East Coast) “. .. reflect the peep show
business.”
Is Officer Gray informing Judge Weiss (who issued the
subject Warrant) that a given corporation maintains books
and records regarding a legal business—peep show?
Have any further facts been introduced in this affidavit to
establish even a suspicion of illegal activity of any kind on
the part of East Coast? What does the term “reflect”
mean ?
The affidavit is clearly a travesty in its overt failure to
establish a basis for probable cause. The affiant still refers
to one still photograph affixed to a box of film marked
“Sex Nurse” as the only basis for criminality of any kind
at either of the premises in question. Even if that snap-
shot justifies more than mere suspicion of any criminal act
with regard to the property at 210 West 42nd Street, how
does it lead to a conclusion that a massive seizure of rec-
ords at other premises is justified or that wholesaling ob-
scenity may be reasonably inferred? It cannot be over-
emphasized that the film “Sex Nurse” was never seized
(not on inventory) and may not have even been on the
premises.
24
East Coast is still engaged in a business the subject
matter of which is presumptively protected by the First
Amendment. Neither it nor appellant has ever been con-
victed on any obscenity charge. On what basis in ‘probable
cause’ does Warrant No. 3 issue?
The Fourth Amendment to the United States Constitu-
tion placed restrictions on the issuance of search war-
rants largely for the purpose of limiting the abuses of
‘‘veneral warrants” against which the courts of England
had waged a long and ultimately successful battle. See,
e.g., Wilkes v. Wood, 19 How St Tr 1153 (1963).
At issue in this case is the question of whether the war-
rant issued by Judges Weiss and Solniker for the search
of East Coast offices at 113 West 42nd Street and the
seizure of ‘‘books and records’’ of several corporations
were ‘‘general warrants’’.
The relevant language of the warrant at issue reads as
follows:
“You are therefore commanded at anytime to make an
immediate search of East Coast Cinematies Ine. of 113
West 42nd Street, 17th floor ... for books and records
of East Coast Cinematies., Inc. reflecting a ‘peep show’
business in New York County in violation of 235.06 of
the Penal Law...”
No contraband, per se, is noted for seizure by the
warrant. No classes of items other than financial records
or “hooks and records’? are listed in the warrant.
Within the categories of items designated for seizure, no
examples are given, no restrictions imposed, no sub-classes
denominated, and no qualifying language employed other
than the single phrase ‘‘reflecting a peep show business’’, —
ete.
The basis for this conclusion that this is a general war-
rant can be most easily viewed by examining the land-
25
mark case of Stanford v. Texas, 379 U.S. 476, 13 L.Ed.
2d 431, 85 S. Ct. 506 (1965). Stanford is almost directly
on point with the instant case since it resolves a Fourth
Amendment question in the context of a First Amendment
fact pattern.
In Stanford, a warrant was issued authorizing search
and certain seizures from residential premises occupied by
an individual believed by local law enforcement authorities
to be engaged in violation of the Suppression Act, Texas
statute banning Communist Party activities within that
state (379 U.S., at 477).
The warrant authorized law enforcement officers to
enter that individual's home and search for and seize
" books, records, pamphlets, cards, receipts, lists,
memoranda, pictures, recordings and other written instru-
ments concerning the Communist Party of Texas . .
(379 U.S., at 478 and 479).
The warrant embraced both presumptively First Amend-
ment protected materials such as ‘‘pamphilets” and
material such as “memoranda” which clearly falls outside
the ambit of that Amendment.
As in the instant searches end seizures, law officers seized
every related item on the premises, from a book by Mr.
Justice Hugo Black (379 U.S. at 479, 480), to the marriage
certificate, insurance policies and personal correspondence
of the individual whose premises were searched. Such a
method of exeeution underlines the abuses inherent in the
issuance of vague and broadly phrased warrants. The
manner of execution, however, did not incur the specific
criticism of the Court. Rather it was the language of the
warrant itself that was attacked.
Referring to the language describing items to be seized
the Court held that:
“The indiscriminate sweep of that language is con-
stitutionally intolerable. To hold otherwise would be
26
false to the terms of the Fourth Amendment, false
to its meaning, and false to its history.” (379 U.S. 486)
The opinion of the Court, as articulated by Mr. Justice
Stewart, develops the historical basis for the constitutional
protection embodied in the Fourth Amendment. The dis-
cussion focuses to a great extent on the eighteenth century
struggle in England to restrict the ‘‘general warrant’? em-
ployed by oflicers of the Crown in the search for evidence
of, and as incidental harassment of individuals suspected
of, the crime of “seditious libel”. See, Stanford v. Texas,
379 U.S. 476, at 482, 483.
The Court extensively paraphrases the holding of Lord
Camden in the famous English case of Entick v. Carrington,
19 How. St. Tr. 1029 (1765), as cited in Stanford v. Texas,
379 U.S. 476, at 483, 484. The following language de-
scribing that case is instructive in perceiving the motiva-
tion and purpose of the Court in the Stanford holding:
A warrant was issued specifically naming him and
that publication, and authorizing his arrest for
seditious libel and the seizure of his “books and
papers’’. The King’s messengers executing the war-
rant ransacked Entick’s home for four hours and carted
away quantities of his books and papers. In an
opinion which this Court has characterized as a well-
spring of the rights now protected by the Fourth
Amendment, Lord Camden declared the warrant to be
unlawful. “This power”, he said, “so assumed by the
secretary of state is an execution upon all the party’s
papers, in the first instance. His house is rifled; his
most valuable secrets are taken out of his possession,
before the paper for which he is charged is found to be
criminal by any competent jurisdiction, and before he
is convicted either of writing, publishing, or being con-
cerned in the paper.”’
The decision in Stanford v. Tevas, that *. . . we think
it is clear that this warrant was of a kind which it was the
27
purpose of the Fourth Amendment to forbid—a general
warrant”. (379 U.S., at 480), arises from the nexus of
Supreme Court holdings distinguishing allegedly obscene
materials from other forms of ‘“‘contraband”. (See, e.g.,
Roaden v. Kentucky, supra, and .1 Quantity of Books v.
Kansas, 378 U.S. 205), with the principles embodied in the
Fourth Amendment and illustrated by cases such as the
English prototype of Extick vy. Carrington. This nexus has
long been recognized by the Court as highlighting the
significance of the Fourth Amendment in its relation to
rights protected by other Amendments. See, e.g., dissent-
ing opinion of Mr. Justice Douglas in Frank v. Maryland,
359 U.S. 360, at 376.
Citing and quoting from Varron vy. United States, 275
U.S. 192, at 196 (1927), the Court recapitulated its reason-
ing regarding the Stanford warrant:
‘“‘The requirement that warrants shall particularly
describe the things to be seized makes general searches
under them impossible and prevents the seizure of one
thing under a warrant describing another. As to what
is to be taken, nothing is left to discretion of the officer
executing the warrant.’’ (Emphasis added)
The warrants in the instant case, as received above, are
even more general than the Stanford warrant.
The warrant names ‘‘books and records’’ as the objects
of seizure without an attempt to restrict same to the crime
allegedly evidenced by certain ‘‘obscene’’ films. The ref-
erence to the particular statutory section violated is not a
helpful guide to the executing officers. § 235.06 ef the New
York Penal Law reads as follows:
“A person is guilty of obscenity in the first degree
when knowing its content and character, he whole-
sale, promotes or possess with intent to wholesale
promote, any obscene material.” (39 MeKinney’s 53)
28
What direction does this reference afford the officer
executing the warrant? He is searching “books and
records.” Tow will he know which “reflect” the crime
defined above? May he seize records relating only to the
three “obscene” films? Must he seize all papers on the
premises? Clearly, the warrant leaves every aspect of
the search and materials to be seized to discretion of the
executing officers. This is a direct contradiction of the
principles of Stanford and Marron.
It is illegal as a ‘‘general warrant.”
The Circuit Court relied on United States vy. Scharf-
man, 448 F.2d 1352 (2d Cir. 1971), as justification for
the seizure of “books and records” pursuant to warrants
employing that term.
It must be pointed out that the nature of the crime (or
contraband) considered in the Scharfman warrant diverges
entirely from the apparent First Amendment related ac-
tivity of East Coast which is the subject of the warrants
examined in this action. Scharfman involved the seizure
of furs, and various “‘instrumentalities” of the crime evi-
denced thereby. The Court upheld the use of the term
“books and records” as a generic description of items to be
seized only in a warrant that qualified such general lan-
guage by reference to a precise defined crime (as opposed
to the ‘‘obscenity’’ allegation herein) and by including that
generic class with other classes of items to be seized re-
lating to the alleged criminal activity, including the con-
traband itself.
Such is preeminently not the case with the warrants in
the instant action where the only definition of items to be
seized is a generic term. Scharfman does not articuiate
the principle that employment records, electric bills, fire
insurance policies, personal notebooks, ledgers of petty
cash expenses, etc., can all be seized pursuant to a war-
rant authorizing seizure of “books and records” relating
29
to the crime of cbscenity without the language of such a
warrant constituting an unconstitutional “general warrant.”
Lastly it should be noted that, unlike the seizure in
Scharfman, the seizures authorized by the warrants herein
effectively halted the disseminaiion of protected expression
by putting appellant out of business. This effected a total
prior restraint as surely as the cloture in Near v. Minne-
sota, 283 U.S. 697. The general warrant authorizing such
prior restraint is, therefore, invalid under the First Amend-
ment as well as the Fourth.
While the material seized herein was recognized by the
Courts of the State of New York and the U.S.D.C. for
the Southern District, to have been seized unlawfully in
violation of the First Amendment, resulting in the sup-
pression and return of the seized material by the respec-
tive courts, and while the District Court opinion below
clearly manifests the attempt by the tria! judge to come
to grips with the First Amendment problems raised by the
seizures herein, the Court of Appeals totally ignored the
issues, relying on Scharfman in this First Amendment case.
CONCLUSION
The evidence seized, without which there could have
been no conviction, should have been suppressed, and,
consequently, the judgment of conviction should be
reversed.
Respectfully submitted,
Hersert S. Kassner,
Attorney for Appellant.
Kassner & Dersxky,
of Counsel.
30
APPENDIX A
Judgment of Affirmance.
UNITED STATES COURT OF APPEALS
FOR THE
Seconp Circuit
At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the United States Court-
house in the City of New York, on the sixteenth day of
December one thousand nine hundred and seventy-five.
Present: Hon. Wattrer R. MansFie._p
Hon. James L. Oakes
Hon. EvtswortH Van GRrakFEILAND
Cireuit Judges
75-1333
Unrrep States oF AMERICA,
Plaintiff-Appellee,
v.
Martin J. Hopas,
Defendant-Appellant,
Hersert J. Levin,
Defendant.
+
—>-
Appeal from the United States District Court for the
Southern District of New York.
|
Judgment of Affirmance.
This cause came on to be heard on the transcript of ree-
ord from the United States District Court for the South-
ern District of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered,
adjudged, and decreed that the judgment of said District
Court be and it hereby is affirmed.
A. Dantet Fusaro
Clerk
by Vineent A. Cariin
Chief Deputy Clerk
32
APPENDIX B
District Court Opinion Denying Motion to Suppress
UNITED STATES DISTRICT COURT
SovrHerN District or New York
75 Cr. 295
Unrtep States oF AMERICA,
against
Martin J. Hopas and Hersert J. Levin,
Defendants.
+
Merzner, D.J.:
The defendants are charged in an indictment with tax
evasion. They move to suppress as evidence the books
and records seized from the business premises of Fast
Coast Cinematies, Inc. (East Coast), 113 West 42nd Street,
New York, N.Y. Defendant Hodas is the president and
100 per cent stockholder of East Coast. Levin is its vice-
president. They claim that the books and records are
“fruit of the poisonous tree’’ and that they were obtained
pursuant to a “general” warrant.
An evidentiary hearing was held on this motion which
developed the following facts. On January 27, 1972, De-
tective Donald Gray of the Public Morals Division, Central
Investigation Unit of the New York City Police Depart-
ment, obtained a search warrant to search “210 West 42nd
Street, ground floor bookstore, store area and cash regis-
ter’’ for a named obscene magazine, and books and records
related to its purchase and sale. This bookstore is oper-
ee ee ee
33
District Court Opinion Denying Motion to Suppress.
ated by one Black Jack Books, which is not connected with
fast Coast. The validity of this warrant is not questioned.
The premises were divided into three parts, a bookstore
area, an area containing “peep show” machines set up for
operation, followed by a closed area accessible only through
a door in the rear of the peep show area. The public
could freely move in the first two areas. The door to
the rear was open when the detective entered the prem-
ises. He observed a man working on a film coating machine
inside the door.
Once inside the room Gray noticed a film box which
had a still photo pasted to it. By looking at the film
leader, he saw the title “Sex Nurse,” and by looking at
the frames, he saw that thegilm was “Sex Nurse,” which
had been “deemed” obseefie. This “deeming” was the
result of a nonadversary finding by Judge Robert Haft
less than one month previously. Upon further examina-
tion he noticed other films and film boxes, among them
several marked “Superman” and “Piss on Susan,” titles
he knew to have been seized in other raids.
The man at the film coating machine stated that the
premises were operated by East Coast, not by the book-
store, and took the detective downstairs to prove this fact.
In the basement Gray observed in excess of 100 peep show
machines. Gray also discovered a certificate of occupancy
showing that East Coast, whose address was listed as 113
West 42nd Street, was the tenant of the premises.
By this time Assistant District Attorney John Jacobs
had arrived. On his instructions, nothing was seized from
the East Coast premises, but Gray went downtown to
Jacobs’ office where he obtained copies of “Superman’’ and
“Piss on Susan” that had been seized in other raids on
other stores. He took these films to Judge Weiss who
viewed them and issued a search warrant for the East
Coast premises at 210 Wesi 42nd Street for these two films
34
District Court Opinion Denying Motion to Suppress.
and for “Sex Nurse,” as evidence of the crime of whole-
sale promotion of obscene materials, N.Y. Penal Law
§ 235.06. According to Gray’s affidavit, ‘‘Sex Nurse’’ had
been deemed obscene by Judge Haft.
At the same time, based on a separate affidavit which only
referred to “Sex Nurse,” Judge Weiss issued a warrant
for the search of East Coast’s offices at 113 West 42nd
Street for “books and records of Kast Coast Cinematies Ine.
reflecting a ‘peep show’ business New York County in
violation of 235.06 of the Penal Law .. . .” Pursuant to
this warrant, police seized certain corporate books and
records from defendants’ desks and files waich were used
to obtain the indictment charging income tax evasion. It is
these books and records that defendants seek to suppress.
1. Standing
There is no question that the initial warrant was properly
issued. The question is whether it was legally executed as
it affects these defendants.
The government argues that defendants lack the standing
to attack the seizure of the records. in Brown v. United
States, 411 U.S. 223 (1973), the Court, in its most recent
formulation of the standing requirements for Fourth
Amendment claims, found no standing where the defendants
“(a) were not on the premises at the time of the con-
tested search and seizure; (b) alleged no proprietary
or possessory interest in the premises; and (c) were
not charged with an offense that includes, as an essen-
tial element of the offense charged, possession of the
seized evidence at the time of the contested search and
seizure.’’ Id. at 229.
It is obvious that defendants here were neither on the
premises nor was possession of anything searched for, or
Pm
35
District Court Opinion Denying Motion to Suppress.
later seized, an element of the crime with which they are
charged. Accordingly, in order to have standing, defend-
ants here must show a sufficient proprietary or possessory
interest in the premises at 210 West 42nd Street.
In Mancusi v. DeForte, 392 U.S. 364 (1968), the Court
held that a union representative had standing to suppress
evidence of the union’s records seized illegally from a
desk in his office in the union’s premises. Of course, he
had no personal possessory or proprietary interest either
in the reeords or in his office space. However, the Court
stated that:
“capacity to claim the protection of the [Fourth]
Amendment depends not upon a property right in the
invaded place but upon whether the area was one in
which there was a reasonable expectation of freedom
from governmental intrusion.” Jd. at 368.
The Court noted that DeForte spent a considerable amount
of time in his office, and that the records seized were in his
actual custody at the time of seizure.
In the instant case, it is true that the premises at 210
West 42nd Street were leased by East Coast, of which
Hodas was the sole stockholder and both defendants were
officers. However, neither maintained offices at this loca-
tion. They were there only irreguarly. Kast Coast’s
portion of the premises was open to employees of the
bookstore who had to pass through to reach the rest room.
There were no desks for the defendants, no files, no desig-
nated areas in which they worked. Thus, the defendants
cannot achieve the expectation of privacy referred to in
Mancusi and do not have standing to challenge the execu-
tion of the search of 210 West 42nd Street.
Even if these defendants have standing to attack the
search, they have failed to sustain their burden of proof
that the search of 210 West 42nd Street was illegal.
36
District Court Opinion Denying Motion to Suppress.
Turning now to the search of 113 West 42nd Street.
In that location both defendants had desks from which
most of the records were taken. They had custody of the
corporate records at that time. This is the Mancusz situa-
tion exactly, and the requisite expectation of privacy is
present. Accordingly, they have standing to challenge
both the warrant issued and the execution of that warrant
as to 113 West 42nd Street.
At this point it must be emphasized that we are not
dealing with fruit of the poisonous tree.
IL. Probable Cause
Defendants argue that Judge Weiss did not have prob-
able cause to issue a warrant for 113 West 42nd Street in
that there was insufficient basis to believe that East Coast
was operating a wholesale business in an obscene matter.
Defendants first argue that the affidavit submitted to
obtain this warrant was deficient in that it only mentioned
the film “Sex Nurse,” a film which Judge Weiss had not
viewed, and which had only been “‘deemed” obscene by an-
other judge. They rely heavily on People v. Gomez, 73
Mise. 2d 623, 342 N.Y.S.2d 903 (N.Y.C. Crim. Ct. 1973),
which held that in seizing obscene materials, a “deeming”
must be made by the judge issuing the warrant, and that
reliance on another judge’s determination, prior to a de-
termination at an adversary hearing, is impermissible.
While this court has serious doubts about the foundation
for this ruling, it need not decide the issue, because this
warrant was issued not for the seizure of obscene mate-
rials, but for the seizure of books and records. Unless
such seizure amounted to a wholesale seizure for the
purpose of stopping distribution of material protected by
the First Amendment, see infra, there is no First Amend-
ment protection that attaches to the corporate records
here involved.
37
District Court Opinion Denying Motion to Suppress.
I find that the finding of Judge Haft, in addition to the
other averments in the affidavit, is sufficient to support a
finding of probable cause in this case.
Some effort was made by the defendants to prove at
the hearing that in fact the coating was being performed
for third persons. They failed in this attempt which,
in any event, would not have been helpful in determining
probable cause. Hundreds of peep show machines on the
premises and hundreds of reels of film can lead a reason-
able person to believe that they belong to the owner.
Finally, defendants argue that there was no guarantee
that the films seen by Detective Gray were the same as
those deemed obscene by Judge Haft, or seized from the
other locations and presented to Judge Weiss. Defendant
argues that, since films tear, are edited, and the like, there
e no two films the same, and that therefore, a finding of
probable cause is impossible. While it may be true that a
pornographic film varies slightly from copy to copy, it *s
unlikely, to say the least, that a rip or tear would tur: it
into the Shirley Temple movie that defense counsel opines
is shown in the rear of Forty-Second Street bookstores.
In all probability, there are sufficient similarities to allow
the judge to make a decision as to obscenity on what is
reasonably believed to be an identical copy.
Accordingly, I find that there was probable cause to issue
the warrant for the search of 113 West 42nd Street.
Ill. “General” Warrant
Defendants claim that the warrant for 113 West 42nd
Street was a general warrant as prohibited by Stanford
v. Texas, 379 U.S. 476 (1965). On the contrary, the in-
stant case differs from Stanford in almost every key re-
spect. First, in Stanford, the search was of a private home
where the defendant resided, and where he carried on a
mail order business. The materials to be seized were rec-
38
District Court Opinion Denying Motion to Suppress.
ords of the Communist Party of Texas. Second, and more
importantly, the rule in Stanford is that “the constitutional
requirement that warrants must particularly describe the
‘things to be seized’ is to be accorded the most serupulous
exactitude when the ‘things’ are books, and the basis for
their seizure is the ideas which the contam.”’ Id. at 485
(emphasis added).
The Court noted that:
“The word ‘books’ in the context of a phrase like
‘books and records’ has, of course, a quite different
meaning. A ‘book’ which is no more than a ledger of
an unlawful enterprise thus might stand on a quite dif-
ferent constitutional footing from the books involved
in the present ease. ... And in some situations books
even of the kind seized here might, for purposes of the
Fourth Amendment, be constitutionally indistinguish-
able from other goods—e.g., if the books were stolen
property.” Jd. at 485 n.16 (citation omitted).
Here, the court is dealing with business papers related
to an allegedly illegal operation. The books themselves are
not the type of books under discussion in Stanford.
In United States v. Scharfman, 448 F.2d 1352 (2d Cir.
1971), cert. denied, 405 U.S. 919 (1972), the Court of Ap-
peals stated, in a case dealing with books and records re-
lated to a theft of furs, that “a general search for books
and records was not directed by the warrant. Only those
books and records used as ‘means and instrumentalities of
the crime’ were or could have been seized pursuant to the
warrant.” Jd. at 1355. The same is true in this case. De-
fendants, however, seek to distinguish Scharfman on the
ground that it does not deal with a First Amendment situa-
tion. It is true that decisions in this district have held
that, prior to a proper determination of obscenity, mass
seizure of all business records of a concern precluding it
from operating a legitimate business in items protected by
the First Amendment constitutes a prior restraint. G.J.
39
Instrict Court Opinion Denying Motion to Suppress.
Distributors, Inc. vy. Murphy, 336 F. Supp. 1086 (S.D.N.Y.),
rev'd on other grounds, 469 F.2d 752 (2d Cir. 1972), va-
cated and remanded, 413 U.S. 919, prior reversal reaff'd
490 F.2d 1167 (2d Cir. 1973), cert. denied, 416 U.S. 939
(1974): Star Distributors, Ltd. v. Hogan, 337 F. Supp. 1362
(S.D.N.Y. 1972).
Both cases were decided prior to the Supreme Court
ruling in Heller v. New York, 413 U.S. 483 (1973), in which
the Court held that an adversary proceeding was not re-
quired prior to seizure. A nonadversary proceeding
“deeming” obscenity now suffices.
In addition, both of the district court cases held only
that the records had to be returned, and specifically di-
rected that the records be held available to law enforce-
ment authorities. In fact, defendants in this action had
their records returned in a separate action under 42 U.S.C.
$1983. Hodas v. Hogan, 72 Civ. 554 (S.D.N.Y. February
15, 1972) (Bauman, J.). Thus, their First Amendment
rights have been sustained, but that is not the issue here.
The purpose behind the ruling, if valid, after the Heller
holding, is to protect the right of the public to obtain pro-
tected material, and to avoid prior restraint. It is not to
protect the holder of records that are evidence of criminal
activity. It does not mean that the records may be sup-
pressed as evidence.
Affidavits for warrants must be construed liberally and
flexibly, under all the circumstances, with a view to the
pressures of time and in the interests of justice. Spznelli
v. United States, 393 U.S. 410 (1969); United States ex rel.
Rogers v. Warden, 381 F.2d 209 (2d Cir. 1967). Judge
Weiss had just viewed the films ‘‘Piss on Susan’’ and
‘*Superman,’’ the films found at 210 West 42nd Street, and
deemed them obscene in connection with Gray’s affidavit
for the search of 210 West 42nd Street. At the very same
time he approved the search of 113 West 42nd Street. It
is fair to conclude that he relied on all the facts of which
he was aware at the time.
40
District Court Opinion Denying Motion to Suppress.
Finally, defendants argue that the finding of Judge
Bauman, mentioned above, that the search was a mass
seizure, is binding on this court. Questions of collateral
estoppel are rare in federal criminal cases. However,
several factors should be noted here. First, the United
States was not a party to the action before Judge Bauman,
and has not had an opportunity to litigate the issue. Sec-
ond, there has been a vital change in the law [Heller v.
New York, supra| since Judge Bauman’s decision, a factor
that prevents the operation of collateral estoppel. Com-
missioner of Internal Revenue v. Sunnen, 333 U.S. 591
(1948); Neaderland y. Commissioner of Internal Revenue,
424 F.2d 639 (2d Cir. 1970). Therefore, I find that any
finding of fact that may have been made by Judge Bauman
is not binding on this court.
I might add that, as to the reasonableness of the search
in question, the New York Penal Law defines the only
essential difference between the crime of promotion of
obscene materials (a misdemeanor), and the wholesale
promotion of obscene materials (a felony), as the intent to
resell] the material. N.Y. Penal Law §§ 235.00(4), 235.00(5)
(McKinney & Supp. 1967 & 1974). It is difficult to see how
such a crime could ever be proved if not through the evi-
dence of business records related to the offense.
For all of the above reasons, the motion to suppress must
be denied.
This case will proceed to trial on Monday, July 21, 1975,
at 10:00 A.M. in Room 2703. Briefs, requests to charge
and voir dire questions shall be filed with the court in
chambers, Room 2201, on or before July 15, 1975.
So ordered.
Dated: New York, N.Y.
June 10, 1975
CuarRLes M. MetTzNeR
U. S. D. J.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.