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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Reply Brief
- **Published:** January 1, 1979
- **Citation:** 442 U.S. 319

## Text

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

li

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

<j

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-

2

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.

3

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

4

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.

9)

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.

6

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.

7

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).

8

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).

9

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.

10

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).

11

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.

12

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.

13

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.

14

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).

15

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).

16

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.”

17

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.

18

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.

19

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.

20

“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.

21

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.

22

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,
Levy and Murray
2121 The Illuminating Building
55 Public Square
Cleveland, Ohio 44113
(216) 781-5245
Attorney for Petitioner

Of Counsel:

J. Micnazmt Murray
Lita L. Weiss

April, 1979.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1780%3A07. Public record. Not legal advice.