Petitioners Reply Brief — Lo-Ji Sales, Inc. v. New York

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In THE APR 12 1979

Supreme Court of the United

Ocroser TERM, 1978

‘iid noos sts. |

]

No. 78-511

Lo-J1 Sares, Inc.,

Petitioner,

—V—.—

Strate or New York,

Respondent.

ON WRIT OF CERTIORARI TO THE APPELLATE TERM OF THE

SUPREME COURT OF THE STATE OF NEW YORK FOR

THE NINTH AND TENTH JUDICIAL DISTRICTS

PETITIONER’S REPLY BRIEF

Brernarp A. BERKMAN

Berkman, Gorpon, KANCELBAUM,

Levy and Murray

2121 The Illuminating Building

55 Public Square

Cleveland, Ohio 44113

(216) 781-5245

Attorney for Petitioner

Of Counsel:

J. MicnarL Murray .

Lita L. Weiss

TABLE OF CONTENTS

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ARGUMENT

I. New Yorx’s Arcument, Apvancep For TH®

First Time In Irs Brier On Tue Menrts In

Tas Court, Taat Toe Srx-Hour Szarcu Or

Petitioner’s Store By Exeven Srate Orri-

ciaLs Unper A Ciarmm Or GoveRNMENTAL Av-

rHoriry Was Not Susszot To Tue FourtH

AmeENDMENT, Is CompteTtety WirHovur Merir 1

A. A Search Conducted In Reliance Upon A

Warrant Cannot Later Be Justified On The

Ground That No Warrant Was Necessary... 3

B. The Conduct Of The State Officials Under

A Claim Of Government Authority In The

Form Of A Search Warrant Was Subject

To The Fourth Amendment ; 6

Il. Tae Jupor’s Examination At Petrrioner’s

Srors,Or Smart Portions Or Eacu Or Houn-

preps Or Fitms Anp Pustications Was An In-

SUFFICIENT Basis Upon Wuicu To Orper THER

SEIZURE 12

Il. Tae Massive Szizore Or Pus.ications, Fiums

Anp Proszctors VioLaTep Petirioner’s Fmst,

Fovrta Anp FourrzentH AMENDMENT Ricuts 16

CoacLusion 22

eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeEeee SS

TasLeE oF AUTHORITIES

PAGE

Cases:

A Quantity of Books v. Kansas, 378 U.S. 205 (1964) ..13, 14,

15, 16, 17, 20

Alderman v. United States, 395 U.S. 165 (1969) ........ 8

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ...... 14

Bumper v. North Carolina, 391 U.S. 543 (1968) ........ 3, 6

Coolidge v. New Hampshire, 403 U.S. 443 (1971) .......... 11

Delaware v. Prouse, —— U.S. ——, 24 Crim. L. Rep.

3079 (1979) ........... ieee Baw nate es i ae

Freedman v. Maryland, 380 U.S. 51 (1965) .................. 16

Gouled v. United States, 255 U.S. 298 (1921) ................ 5

Heller v. New York, 413 U.S. 483 (1973) ........ 7, 15, 17, 19, 20

Hoffa v. United States, 385 U.S. 293 (1966) .................. 10

Kate v. United States, 389 U.S. 347 (1967) 8,9

Kremen v. United States, 353 U.S. 346 (1957) ................ 15

Lewis v. United States, 385 U.S. 206 (1966) ................ 5, 10

Lopez v. United States, 373 U.S. 427 (1963) ...............-+- 10

Mapp v. Ohio, 367 U.S. 643 (1961) ... 20

Marcus v. Search Warrants, 367 U.S. 717 (1961) ......13, 14,

15, 16, 17, 20

Miller v. California, 413 U.S. 15 (1973) 12

Rakas v. Illinois, —— U.S. ——, 99 S.Ct. 421 (1978) .... 9

Recemik v. City of Lorain, 393 U.S. 166 (1968) .......... mee |

iii

PAGE

Speiser v. Randall, 357 U.S. 513 (1958) 14

State v. LaDuca, 89 N.J. Super. 159, 214 A. 2d 423

(N.J. Super. Ct., Appell. Div. 1965) ...... 10”

United States v. Branch, 545 F. 2d 177 (D.C. Cir.

BFE) ooescicciciclmeaaae 4,6

United States v. Chadwick, 433 U.S. 1 (1977) ................ 8,9

United States v. Cunningham, 424 F. 2d 942 (D.C. Cir.

1970), cert. denied, 399 U.S. 914 (1970) 4,6

United States v. Sherwin, 572 F. 2d 196 (9th Cir. 1977),

cert. denied, —— U.S. ——, 98 S.Ct. 3101 (1978) ...... 11

Von Cleef v. New Jersey, 395 U.S. 814 (1969) ............ 15

Constitutional Provisions:

First Amendment, United States Constitution ......14, 20, 21

Fourth Amendment, United States Constitution ........ 2, 3, 4,

6, 7, 8, 9, 19, 20, 21

Fourteenth Amendment, United States Constittuion ..20, 21

Other Sources:

Amsterdam, Perspectives on the Fourth Amendment,

58 Minn. L. Rev. 349 (1974) 8

IN THE

Supreme Court of the United States

Ocroser Term, 1978

No. 78-511

—_

Lo-J1 Saues, Inc.,

Petitioner,

—V.—

State or New York,

Respondent.

ON WRIT OF CERTIORARI TO THE APPELLATE TERM OF THE

SUPREME COURT OF THE STATE OF NEW YORK FOR

THE NINTH AND TENTH JUDICIAL DISTRICTS

PETITIONER’S REPLY BRIEF

NEW YORK’S ARGUMENT, ADVANCED FOR THE FIRST

TIME IN ITS BRIEF ON THE MERITS IN THIS COURT,

THAT THE SIX-HOUR SEARCH OF PETITIONER’S STORE

BY ELEVEN STATE OFFICIALS UNDER A CLAIM OF GOV.

ERNMENTAL AUTHORITY WAS NOT SUBJECT TO THE

FOURTH AMENDMENT, IS COMPLETELY WITHOUT

MERIT.

When the eleven state officials invaded the petitioner’s

store, placed the only employee on the scene under arrest,

and proceeded to conduct a six-hour general search of the

entire premises, they claimed that their intrusion was au-

thorized and justified by a search warrant which had previ-

ously been issued by Town Justice O’Connor. When the

petitioner, in the trial court, moved to suppress the evi-

dence carted away by the eleven state officials, the respon-

dent adhered to this position and argued that the search

and seizure had been justified by a validly issued and ap-

propriately executed search warrant. Even in this Court,

in its brief in opposition to the petition for certiorari, New

York continued to argue that the conduct of its police

officers, prosecutors and town justice complied with the

Fourth Amendment because the search warrant under color

of which it had occurred had been constitutionally proper.

Now, however, in its brief on the merits, the respondent,

apparently recognizing the difficulty of its task, offers an

altogether different justification for the search and seizure.

In its brief on the merits, the respondent does not attempt

to defend the search warrant in reliance upon which the

state officials acted; the respondent does not argue that

there was probable cause for the issuance of the warrant;

the respondent does not argue that the warrant satisfied

the particularity requirement of the Fourth Amendment.

Rather, the respondent now argues that petitioner, as a

retail store open to the public, is not entitled to the pro-

tection of the Fourth Amendment at all, because it has no

reasonable expectation of privacy. As a consequence, re-

spondent argues, it makes no difference whether the war-

rant was constitutionally proper or not, because the eleven

state officials did not need it in order lawfully to search the

petitioner’s premises.’ Thus, like the attempt by the re-

spondent’s officials to repair the defective general warrant

in this case by appending fourteen pages to it after the

seizure had already occurred, the respondent now, in an

effort to carry the day, seeks to escape the infirmity of

* Br. of Resp., pp. 9-18.

the warrant by an after-the-fact claim that it was unneces-

sary in the first place. However, for the reasons set forth

below in subsection A of this argument, this Court should

not even consider this claim. Moreover, even if the Court

were to consider the merits of the respondent’s theoretical

claim, the Court should reject the claim as completely

without merit, for the reasons advanced below in sub-

section B of this argument.

A. A Search Conducted in Reliance Upon a Warrant Cannot

Later Be Justified on the Ground That No Warrant Was

Necessary.

The respondent argues hypothetically that because peti-

_tioner is a retail store open to the public, the eleven state

officials in this case could lawfully have entered the store

and viewed the petitioner’s merchandise without probable

cause and without a warrant, as members of the general

public. Had they done so, the respondent asserts, they

would have invaded no interest of the petitioner protected

by the Fourth Amendment. This Court need not and should

not consider this theoretical claim, however, because having

relied upon the power and authority of a warrant to invade

the petitioner’s store and to search it from top to bottom

for a six-hour period, the prosecution is in no position now

to claim the petitioner’s “open” door as authority and

justification for the search.

In Bumper v. North Carolina, 391 U.S. 543 (1968), police

officers appeared at the home the petitioner shared with

his grandmother. Petitioner’s grandmother met the of-

ficers at the front door. When the police announced that

they had a search warrant to search the house, petitioner’s

grandmother told them to go ahead and search. A rifle

seized by the police during this search was introduced, over

objection, at the petitioner’s trial for rape. At the hearing

on the petitioner’s motion to suppress, the state disclaimed

reliance on the warrant to justify the seizure and argued

that the search was authorized by the consent of the peti-

tioner’s grandmother. The same argument was made in

this Court. This Court rejected that argument, however,

holding that:

““A search conducted in reliance upon a warrant cannot

later be justified on the basis of consent if it turns

out that the warrant was invalid.” Jd. at 391 U.S. 549

(footnote omitted).?

This same principle should operate to prevent New York

in the present case from urging that the search conducted

by eleven state officials in reliance upon a warrant can now

be justified on the basis of the constructive consent the

petitioner allegedly manifested to an inspection of its prem-

ises, by virtue of the fact that the petitioner, as a retail

store, invited the public to enter its premises to transact

business. New York, having taken the serious step of in-

voking its governmental power of search to achieve its law

enforcement objectives, may not, in order to escape the

Fourth Amendment consequences of having exercised that

power, claim, on the basis of an after-the-fact hypothesis,

that it could have accomplished the same objectives with-

out invoking its power of search, by an alternative method

which would not have invaded any interest of the petitioner

protected by:the Fourth Amendment.

by See also United States v. Cunningham, 424 F. 2d 942 (D.C.

Cir. 1970), cert. denied, 399 U.S. 914 (1970) and United States v.

Branch, 545 F. 2d 177, 186, n. 24 (D.C. Cir. 1976) (a search

claimed to be incident to arrest may not be justified, when it turns

out that there was a lack of probable cause to arrest, on the basis

of a hypothetical claim that, instead of arresting the suspect, the

police officer could lawfully have stopped and frisked him and,

thereby, have uncovered the same evidence in a manner which

did not violate the Fourth Amendment.

There can be no question but that the eleven state officials

who invaded petitioner’s premises relied upon the power

and authority of a search warrant, not upon whatever

rights they may have had as members of the general pub-

lic, to occupy the petitioner’s store and search it thor-

oughly for a six-hour period. They claimed and relied upon

governmental power and compulsory process to accomplish

their preconceived plan, not upon the petitioner’s implied

consent to the admission of patrons who may have desired

to purchase merchandise. As this Court noted in Lewis v.

United States, 385 U.S. 206, 211 (1966), a case upon which

the respondent relies:

“A government agent, in the same manner as a private

person, may accept an invitation to do business and

may enter upon the premises for the very purposes

contemplated by the occupant. Of course, this does not

mean that whenever entry is obtained by invitation and

the locus is characterized as a place of business, an

agent is authorized to conduct a general search for

incriminating materials; a citation to [Gouled v.

United States, 255 U.S. 298 (1921)], is sufficient to

dispose of that contention.” (Emphasis added).

Whatever invitation the petitioner may have extended

to the general public to enter its store, it did not include an

invitation to seize exclusive control of the premises or to

harass other customers or to view films without paying

admission or to search for business documents or to tear

off the covers of hundreds of publications or to arrest the

only employee on the premises. Nor did the petitioner ever

give up its right to exclude or remove from its store any

patron who would engage in such conduct or otherwise

abuse the limited privilege extended to him by the peti-

tioner to enter the store.

By arguing that the search in this case should be upheld

without regard to the validity of the warrant in reliance

upon which it oceurred, the respondent is asking this Court

not only to disregard completely the facts of this case, but

to assume and speculate that the eleven state officials could

have acted in the same manner without the power of a war-

rant or a show of governmental force. Compare United

States v. Cunningham, 424 F.2d 942 (D.C. Cir. 1970), cert,

denied 399 U.S. 914 (1970): United States v. Branch, 545

F.2d 177, 186, n. 24 (D.C. Cir. 1976). In fact, however,

absent the compulsory process of a search and arrest war-

rant and absent a claim of governmental authority, it is

clear that the petitioner would never have allowed the state

officials or anyone else, claiming the rights of the general

public, to engage in any of the conduct which took place

during the six-hour siege of petitioner’s store.

Accordingly, this Court should not even consider New

York’s claim that the conduct of its officials in reliance

upon a warrant was not subject to the Fourth Amendment.

Having invoked the governmental power of search to ac-

complish its objectives, the respondent cannot avoid the

Fourth Amendment consequences of the exercise of that

power. See Bumper v. North Carolina, supra.

B. The Conduct of the State Officials Under a Claim of

Governmental Authority in the Form of a Search Warrant

Was Subject to the Fourth Amendment.

Even if this Court should reach the merits of respon-

dent’s claim, that claim should be rejected as completely

without merit. The basic thrust of the respondent’s argu-

ment is that a retail store open to the public has no rea-

sonable expectation of privacy as to any area of the store

to which the public is admitted.* Consequently, the respon-

* Br. of Resp., p. 12.

dent argues, the state officials in this case did not need a

valid warrant or probable cause to enter the petitioner’s

store and view the merchandise offered for sale or exhibi-

tion by the petitioner. Rather, they could have claimed the

right to enter the store and view the merchandise as mem-

bers of the general public, unhampered by the restrictions

of the Fourth Amendment until such time as they actually

effected a seizure. Whatever the validity might be of such

an argument in a case where a state official appears on

the premises of a retail business open to the public, claim-

ing no greater right to be there than that of any other

customer, compare Heller v. New York, 413 U.S. 483 (1973),

the argument simply has no relevance to the present case,

because that is not what happened here.

In the present case, the eleven state officials who invaded

petitioner’s store did so, from the very beginning, and at

every step of the way, under a claim of governmental

authority in the form of a search warrant and an arrest

warrant. Upon entering the store, they immediately placed

the only employee on the premises under arrest and in-

formed him that they had with them a search warrant

authorizing a search of the entire store. They placed uni-

formed guards both inside and outside the store and de-

terred any members of the public from entering by com-

pelling them to display identification. In short, as soon as

they entered under a claim of official right, the eleven state

officials closed the store and, within the meaning of the

Fourth Amendment, seized it and its entire contents for

the duration of their six-hour search. Compare Delaware

v. Prouse, —— U.S. ——, 24 Crim. L. Rep. 3079, 3081

(1979).*

‘The expectation of privacy reasonably held by the petitioner

at this point was that of a store closed to the public rather than

that of a store open to the public. Compare Recznik v. City of

Lorain, 393 U.S. 166 (1968).

Moreover, the six-hour search that followed the initial

seizure of the store and which took place under compulsion

of a search warrant was a governmental search in the °

truest sense of the word and bore no resemblance to the

kind of inspection that could have been made by a prospec-

tive customer. The record in this case demonstrates that

the state officials, claiming the authority of a search war-

rant, roved from one section of the store to another, view-

ing segments of films without paying the admission price;

leafing through magazines and books with a view toward

seizing them, not buying them; ripping off che plastic

covers that completely enclosed hundreds of publications

and stacking the publications in piles on the floor, a search

and seizure under any definition of those words;° ran-

sacking a multitude of films and other items behind a glass

case in the counter area; and rifling through a box of

business documents. At all times throughout the six-hour

search, the only employee in the store was under arrest and

the store was under the exclusive and complete control of

the state.

The respondent argues that none of this conduct, how-

ever, was subject to the commands of the Fourth Amend-

ment. Stated simply, the respondent argues that by en-

gaging in a retail business open to the public, the petitioner

abandoned its Fourth Amendment right to be free from the

kind of police action which occurred in this case. Indeed,

by a restrictive reading of Kate v. United States, 389 U.S.

347 (1967), a case universally regarded as having expanded

the scope of protection afforded by the Fourth Amend-

ment,’ the respondent would declare an open season on all

commercial enterprises which do business with the public.

* See United States v. Chadwick, 483 U.S. 1 (1977).

° See Alderman v. United States, 395 U.S. 165, 176-180 (1969) ;

Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L.

Rev. 349, 385 (1974).

In Katz, this Court rejected the notion that the Fourth

Amendment protects only against governmental intrusions

accomplished by means of a trespass or physical intrusion

into an enclosure. This Court held that the Fourth Amend-

ment protects people, not areas, from governmental in-

vasions of reasonably held expectations of privacy. The

Court was quick to note, however, that the Fourth Amend-

ment “... cannot be translated into a general constitutional

‘right to privacy’. ..” and that “... its protections go

further, and often have nothing to do with privacy at

all....” Id., at 389 U.S. 350.

The respondent reads Katz, and subsequent decisions of

this Court recognizing that the Fourth Amendment pro-

tects reasonable expectations of privacy,’ as a restriction,

rather than an expansion, of the scope of protection af-

forded by the Fourth Amendment. In particular, the re-

spondent urges that the Fourth Amendment protects only

privacy interests, which respondent narrowly defines as

an interest in secrecy.* Under this view, a retail business

which opens its doors to the public abandons any reason-

able expectation of privacy (i.e., secrecy) it may have had

in its premises and sheds its Fourth Amendment right to

be free from unwarranted government invasion of its

premises and interference with its business, regardless of

the nature and scope of the intrusion. This view is com-

pletely without merit.

Whatever it is labelled, the petitioner here had a rea-

sonable expectation, protected by the Fourth Amendment,

that its commercial establishment would be secure from an

unwarranted intrusion by government officials claiming

3 See United States v. Chadwick, 433 U.S. 1 (1977); Rakas v.

Illinois, —— U.S. ——, 99 S.Ct. 421 (1978).

* Br. of Resp., pp. 10, 12.

official power to assume dominion and control over the

store. Whether or not the petitioner, by opening its doors

to the publie, assumed the risk that one or more of its

paying customers would actually be a state official,’ the

petitioner by no means surrendered its reasonable expecta-

tion that it would be free from arbitrary invasion by

government officials, not claiming the right of a customer,

but claiming the superior right of official authority to

search the store.

What the eleven state officials accomplished during their

six-hour siege of petitioner’s store, under authority of a

search warrant, could never lawfully have been accom-

plished by a member of the public who accepted the peti-

tioner’s invitation to enter the store and purchase merchan-

dise offered for sale or exhibition. No private citizen

lawfully could have entered the premises in a show of force.

No private citizen lawfully could have placed the only em-

ployee there under custody, and then proceed to insist upon

the right to take the names of other customers, to see films

without paying for them, to examine private business rec-

ords, to rip off the covers of hundreds of publications and

to occupy the premises for a six-hour period. See State v.

LaDuca, 80 N.J. Super. 159, 214 A. 2d 423 (N.J. Super. Ct.,

Appell. Div. 1965). Indeed, had a private citizen attempted

to do what the state officials in the present case did,

petitioner justifiably could have called upon those very

same state officials to come to petitioner’s store and protect

its property by enforcing the law against the private

citizen.

Clearly, the petitioner had a reasonable expectation that

the security of its premises would not be invaded in the

*See Lewis v. United States, 385 U.S. 206 (1966); Hoffa v.

United States, 385 U.S. 293 (1966); Lopez v. United States, 373

U.S 427 (1963).

manner that it was. And it is precisely that kind of interest

which the Fourth Amendment protects. Accordingly, the

respondent’s contention that the six-hour search of the

petitioner’s store was not subject to, and need not be meas-

ured by, the commands of the Fourth Amendment, is

patently frivolous.”

1° Even the respondent concedes that the seizure of over 920

items from petitioner’s store was subject to the Fourth Amend-

ment. What is unclear, however, is how the respondent claims

the seizure was lawful. The respondent alludes to, but does not

rely upon, the plain view doctrine. Nor could the respondent rely

upon that doctrine, since the state officials were not lawfully in

the place from which they gained their view of the materials

seized; since, far from discovering these materials inadvertently,

the officials invaded petitioner’s store for the very purpose of

searching for and seizing the materials they knew they would

find; and since the alleged incriminating nature of the materials

was certainly not immediately apparent. See Coolidge v. New

Hampshire, 403 U.S. 443 (1971). Furthermore, the plain view

exception to the warrant requirement has no application to the

seizure of expressive material. United States v. Sherwin, 572 F. 2d

196 (9th Cir. 1977), cert. denied, —— U.S. ——, 98 S.Ct. 3101

(1978). The respondent appears to rely upon the magistrate’s

presence at the store and supervision of the seizure as a basis for

upholding the seizure. As petitioner demonstrated in its opening

set at pp. 32-35, however, the seizure cannot be justified on

that basis.

THE JUDGE’S EXAMINATION AT PETITIONER’S STORE

OF SMALL PORTIONS OF EACH OF HUNDREDS OF FILMS

AND PUBLICATIONS WAS AN INSUFFICIENT BASIS UPON

WHICH TO ORDER THEIR SEIZURE.

The respondent does not take issue with the petitioner’s

account of Judge O’Connor’s “examination” of the films

and publications at petitioner’s store. More specifically,

the respondent concedes that the judge ordered the seizure

from petitioner’s store of every copy of numerous films

on the basis of his having viewed isolated and minute

segments of them; every copy of hundreds of publications

on the basis of a two to ten second glimpse of “two or

three pages, half a dozen pages” of each; and every copy

of numerous other films based solely upon a glance at the

small still photograph on each of the boxes in which the

films were contained.” In no instance did the judge inspect

any film or publication in its entirety. The respondent,

nevertheless, argues that the judge fulfilled his obligation

to focus searchingly on the question of obscenity before

rémoving these materials from the marketplace, despite

this Court’s clear pronouncement that a finding of obscenity

can only be based upon a consideration of a work as a

whole. Miller v. California, 413 U.S. 15 (1973).

The respondent argues that the focusing search on ob-

scenity which this Court has prescribed as the constitu-

tional prerequisite to a lawful seizure of expressive ma-

terial does not mean that a magistrate, before ordering

the seizure of a book or film, must necessarily review the

entire item in question or even a substantial portion of it.

ek a F

‘* See Br. of Resp., pp. 23-24.

Rather, a quick and casual glimpse at a small fragment of

the work in question may, in a given case, satisfy the con-

stitutional requirements established by this Court.

The respondent argues that the extent to which a

magistrate must focus searchingly on the question of the

obscenity of a work before ordering it seized depends, in

part, upon the nature and extent of the restraint that would

be imposed by the contemplated seizure.” However, such

an analysis would hardly help the respondent in this case,

because here the seizure ordered by the judge was par-

ticularly repressive. In this case, the judge ordered the

seizure of every copy of hundreds of films and publications,

a type of seizure that this Court has characterized as im-

posing the most effective and final restraint possible. Mar-

cus v. Search Warrants, 367 U.S. 717 (1961); A Quantity

of Books v. Kansas, 378 U.S. 205 (1964). The judge here

completely and totally removed from the marketplace

hundreds of films and publications and thereby accom-

plished a result which this Court has held lawfully can be

accomplished only after an adversary hearing on the ques-

tion of obscenity. Marcus, supra; A Quantity of Books,

supra. Thus, if, as the respondent suggests, the extent to

which a magistrate must focus searchingly on the question

of obscenity depends upon the kind of restraint that would

be imposed by the contemplated seizure, then the magis-

trate’s burden to review the materials in this case in their

entirety was greater, not lesser.

The respondent also argues that the kind of review con-

stitutionally required of a magistrate depends upon the

nature of the materials themselves and the location where

the materials are being offered for sale. More specifically,

the respondent argues that when the materials in question

* Br. of Resp., pp. 21-22.

are sexually oriented and are being offered for sale at an

adult bookstore, a hasty examination of minute portions

of each item is constitutionally adequate.* Exactly the

opposite is true, however, for it is precisely with respect

to sexually oriented materials that the line separating ob-

scenity from constitutionally protected speech is most “dim

and uncertain.” * It is precisely when a magistrate reviews

sexually oriented materials that he needs to employ “sensi-

tive tools” ** in the performance of his constitutional task.

Moreover, the variable and flexible procedural rule urged

by New York would afford insufficient protection to ma-

terials substantively protected by the First Amendment.

While this Court has recognized the power of the states

to regulate obscenity, this Court has been ever watchful

to require the states to adopt procedures for the exercise

of that power which cannot readily be used to suppress

non-obscene material. Thus, whenever this Court has been

asked to approve a state procedure for the enforcement of

obscenity laws, the Court has always applied the same

test: whether the procedure in question includes sufficient

safeguards to minimize the risk that its use would, or easily

could, result in the suppression of non-obscene materi I.

Marcus, supra; A Quantity of Books, supra. The pro-

cedure used by New York in this case falls far short of

meeting that standard.

The approval of a procedure by which films and publica-

tions are seized on the basis of a rapid and fleeting review

of small segments of each would jeopardize a vast bulk

of materials entitled to First Amendment protection. Under

such a procedure, a multitude of films and publications

* Br. of Resp., p. 22.

** Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963).

16 Speiser v. Randall, 357 U.S. 513, 525 (1958).

legitimately dealing with the important topic of sex would

be subject to seizure. If this Court’s repeated insistence

upon procedures designed to focus searchingly on the ques-

tion of obscenity prior to seizure of expressive material

means anything, it must mean that a magistrate has to

consider a work as a whole, either by reviewing it himself

in its entirety or by studying an affidavit which fully sets

forth the entire contents of the work, before ordering it

removed from the marketplace. See Marcus, supra; A

Quantity of Books, supra; Heller v. New York, 413 U.S. 483

(1973). Because the judge in the present case altogether

failed to review adequately the materials he ordered seized

from petitioner’s store, the petitioner’s conviction should

be reversed.”

*" New York points out that petitioner was convicted on three

counts and urges that it might be appropriate for this Court to

reverse less than all three counts by holding that Judge O’Connor’s

initial inspection of some of the materials was constitutionally

adequate even if his inspection of other materials was not. The

petitioner disagrees. First, the judge failed to focus searchingly

on any item he ordered seized. Second, the massive seizure here

cannot, by an after-the-fact review, be artificially multiplied into

three distinct episodes. Rather, if any part of this enormous and

indiscriminate seizure was unlawful, the entire seizure was neces-

sarily tainted. See Kremen v. United States, 353 U.S. 346 (1957) ;

Von Cleef v. New Jersey, 395 U.S. 814 (1969).

Il.

THE MASSIVE SEIZURE OF PUBLICATIONS, FILMS AND

PROJECTORS VIOLATED PETITIONER’S FIRST, FOURTH

AND FOURTEENTH AMENDMENT RIGHTS.

This Court has recognized that the seizure of all copies

of a publication or film represents the most effective and

repressive final restraint upon the circulation of expressive

materials possible. Marcus v. Search Warrants, 367 U.S.

713 (1961); A Quantity of Books v. Kansas, 378 U.S. 205

(1964). Since a final restraint lawfully can be imposed only

following an adversary judicial proceeding on the issue of

obscenity, Freedman v, Maryland, 380 U.S. 51 (1965), this

Court has held that a seizure of all copies of a book or

film may lawfully be effected only if it is preceded by an

adversary hearing on the question of obscenity. Marcus,

supra; A Quantity of Books, supra. Under this Court’s

decisions, it is clear, therefore, that the seizure of all

copies of hundreds of publications and films in this case

prior to any adversary hearing was unlawful.

The respondent argues, however, that the following lan-

guage contained in the search warrant, under authority of

which the repressive seizure in this case occurred, ren-

dered the principles established by this Court’s decisions

inoperative :

“... The Court hereby specially determines that this

Warrant shall constitute notice to any persons arrested

or charged pursuant to its execution, that they are

entitled to immediate adversary hearing, as soon as

practicable, so that a determination can be made as

to whether or not the material seized was possessed in

violation of Article 235 of the Penal Law.”

The respondent argues that this language in the warrant

gave its officials a license to engage in conduct during the

raid of petitioner’s store far in excess of that which could

possibly have served any legitimate law enforcement pur-

pose and entitled them to seize an enormous number of

items not needed for any valid evidentiary purpose.”* This

argument is completely without merit.

In A Quantity of Books, supra, this Court was presented

with an identical argument. In that case, it was argued

that the massive seizure there should be upheld because

the commercial establishment from which the books were

seized was afforded a full hearing following the seizure,

pursuant to a notice of hearing contained in the warrant.

This Court rejected that argument, however, and held at

378 U.S. 212-213:

“Nor is the order under review saved because after

all 1715 copies were seized and removed from circula-

tion, P-K News Service was afforded a full hearing on

the question of the obscenity of the novels. For if

seizure of books precedes an adversary determination

of their obscenity, there is danger of abridgement of

the right of the public in a free society to unobstructed

circulation of non-obscene books.” [Citations omitted]

(Emphasis added).

Moreover, in Heller v. New York, 413 U.S. 483 (1973),

this Court promised that any large scale seizure of expres-

sive material would be scrutinized by courts “.. . to be

certain that the requirements of A Quantity of Books and

Marcus are fully met”, id. at 413 U.S. 491, and to be cer-

tain that the purpose of a seizure is not to block distribu-

tion of materials presumptively protected by the First

* Br. of Resp., p. 27.

Amendment, but is merely to preserve as evidence the

single copies of books or films needed for prosecution.

The respondent claims that the purpose of the seizure in

this case was not to block circulation of the hundreds of

films and publications seized at petitioner’s store but

merely to preserve evidence needed for prosecution.” This

claim is altogether belied by the record before this Court.

The respondent does not, and cannot, explain the evi-

dentiary purpose served by the seizure of additional copies

of the only two films specifically identified in the warrant

and which the state already had in its possession before it

even entered petitioner’s store to execute the warrant. In

fact, the only purpose served by the seizure of additional

copies of those films was to block their exhibition.

The respondent defends the seizure of four coin boxes

attached to the booths in which patrons could view films

being exhibited by the petitioner as necessary to prove that

petitioner “promoted” the films exhibited by it.”° Although

not expressly stated in its brief, presumably the respon-

dent would defend the seizure of 26 film projectors on the

same basis. The respondent’s claim is utter nonsense, how-

ever. Proof of promotion derives from the fact that peti-

tioner was a retail store open to the public and charged an

admission price for viewing films and charged a purchase

price for the sale of films and publications. Ten law en-

forcement officers and a magistrate were available to prove

those facts beyond a shadow of a doubt by their testimony

in open court. Clearly, the only purpose served by the

seizure of the coin boxes, and particularly by the seizure

of every one of the petitioner’s film projectors, was to

” Br. of Resp., pp. 28-32.

*° Br. of Resp., p. 29.

guarantee that the petitioner would be unable to exhibit

any films to the public, regardless of their content.

The respondent defends the harassment of prospective

customers by the police on the ground that “these people

were potential witnesses at a suppression hearing.” (Br.

of Resp., p. 30). That contention is absurd. What relevant

testimony could prospective customers possibly have given

at the suppression hearing? The only purpose served by

compelling prospective customers to display identification”

was to harass them, to insure that the petitioner’s store

remained closed during the six-hour search, and to discour-

age the customers from returning at a later date. The

complete invalidity of the respondent’s contention that

prospective customers were viewed as potential state wit-

nesses at a suppression hearing is amply demonstrated

by the fact that not a single one of them was ever called

to testify when the suppression hearing in this case was

held,

Finally, the respondent defends the seizure of all copies

of hundreds of films and publications by pointing to a

New York statute which establishes a presumption that

one who possesses six or more identical or similar copies

of an obscene article intends to promote such article.” In

Heller, supra, this Court anticipated that such a claim

might be made to justify a seizure of more than the one

copy of a film or publication legitimately needed for evi-

dentiary purposes. This Court made it clear that it would

reject such a claim:

“1 This procedure rey! constituted a seizure of those citizens

within the meaning of the Fourth Amendment. Delaware v. Prouse,

—— US. , 24 Crim. L. Rep. 3079, 3081 (1979).

22 Br. of Resp., p. 31.

“This is not to say that multiple copies of a single

film may be seized as purely cumulative evidence, or

that a State may circumvent Marcus or A Quantity

of Books by incorporating, as an element of a criminal

offense, the number of copies of the obscene materials

involved.” Heller, supra, at 413 U.S. 492, n. 8.

The mass seizure which occurred in the present case was

clearly unlawful under the First, Fourth and Fourteenth

Amendments. The respondent argues additionally, how-

ever, that even if that is the case, the proper remedy

would have been the return to petitioner of all extra copies

of the seized materials, not suppression of all fruits of the

seizure. That being the case, the respondent argues, the

petitioner’s conviction may be affirmed notwithstanding the

constitutional violation perpetrated by the mass seizure.”

The petitioner disagrees for three reasons.

First, in Marcus and A Quantity of Books, this Court

found it necessary to reverse the judgments, obtained after

trial in those cases, ordering the destruction of materials

found to be obscene, in order to vindicate the First and

Fourteenth Amendment rights that had been abridged by

the mass seizures that had occurred. Here, too, a viola-

tion of the First and Fourteenth Amendments infected the

proceedings, necessitating a reversal of petitioner’s con-

viction.

Second, for the reasons set forth in petitioner’s opening

brief at p. 44, the mass seizure here violated the Fourth

Amendment as well as the First Amendment. Thus, the

appropriate remedy is suppression of all items seized.

Mapp v. Ohio, 367 U.S. 643 (1961).

*8 Br. of Resp., p. 32.

Third, the constitutional values which are denigrated

by an unlawful mass seizure cannot adequately be vindi-

eated by anything less than a condemnation of the entire

seizure and suppression from evidence of all of its fruits.

In such a ease, it is insufficient merely to order the return

of the extra copies of the seized materials, while permit-

ting the state to retain one copy of each seized film and

publication for use as evidence at a criminal trial. If that

were the only remedy afforded for an illegal mass seizure,

law enforcement officers would have no incentive’ to limit

seizure of expressive material to the single evidentiary

copy needed for prosecution. They could seize multiple

copies of allegedly obscene materials safe in the knowl-

edge that they eould block the distribution and cireula-

tion of films and publications offensive to them for a period

of time without in any way jeopardizing any criminal

prosecution which results.

Mass seizures of allegedly obscene materials are im-

permissible precisely because they impose prior restraints

on the circulation of expressive materials, in violation of

the First Amendment. If the only remedy for such a vio-

lation were the eventual lifting of the prior restraint, by

return of the copies not needed for prosecution upon

adjudication of an independent lawsuit or upon hearing

of a motion to suppress, there would be no effective de-

terrent to the effectuation of mass seizures by law enforce-

ment officers. Those who would use the search and seizure

power to suppress the dissemination of unpopular ideas

could do so successfully, without having to suffer any ad-

verse consequences. Accordingly, only suppression of all

evidence obtained in the course of an illegal mass seizure

adequately vindicates the First, Fourth and Fourteenth

Amendments. The petitioner’s conviction should, there-

fore, be reversed.

CONCLUSION

For the reasons stated in its opening brief and upon the

authorities and argument presented in this reply brief,

petitioner respectfully urges the Court to reverse peti-

tioner’s conviction.

Respectfully submitted,

Bernarp A. BerKMAN

Berkman, Gorpon, KanceLBAuM,