Petition — Imperial Distributors, Inc. v. United States
Supreme Court brief1980
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FIWE D
In The
Supreme Court of the Unite
October Term, 1979 \
JUN 16 1980 |
PypAr, JR., CLERR }
No
IMPERIAL DISTRIBUTORS, ce 96% BOOK
SHOPS, INC.; PALACE BOOK SHOP, INC. d/b/a
PALACE THEATER; K.I.M. REALTY, INC.; GEMINI
ENTERPRISES, INC.; EAGLE PUBLICATIONS,
LTD.; and KENNETH GUARINO,
Petitioners,
vs.
THE UNITED STATES OF AMERICA; EDWARD F.
HARRINGTON; CHARLES E. CHASE; EDWARD M.
KAVANAGH, S.A.; PHILIP G. REILLY, S.A.;
COLONEL ANGELO RICCI; SGT. VINCENT VESPIA,
JR.; SGT. RONALD J. URSO; DET. ALFRED HAMEL;
and LAWRENCE GILLIGAN, S.A.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Herald Price Fahringer, Esq.
Paul J. Cambria, Jr., Esq.
Attorneys for Petitioners
Barbara Davies Eberl, Esq.
On the Petition
One Niagara Square
Buffalo, New York 14202
(716) 849-1333
Nelson Baker, Esq.
Ten Post Office Square
Suite 615
Boston, Massachusetts 02109
(617) 482-5177
William E. Seekford, Esq.
1302 Penthouse
28 Allegheny Avenue
Towson, Maryland 21204
(301) 821-6868
Of Counsel
The Daily Record (61 14) Spaulding Law Printing
Rochester, New York Syracuse, New York
TABLE OF CONTENTS
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| PETS E TEE eee eee eee
PETE TUTE Te ree eee
Constitutional Provisions and Statutes Involved ......
VDueutiin FROGUMEOE . ogc s s vec eweeceues Poe rts
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PC TTET ET ePC CT Cee eee
pe kg eee rere ere or
Outline of Events of February 28, 1978............
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Reasons for Granting the Writ
I. This Court’s decision in DiBella v. States, 369 U.S.
121 (1962), does not require the dismissal of the appeal
of the order denying petitioners’ motion for return,
especially when there has been no indictment 27
months after the illegal seizure. .................
II. The order to stop and earch a truck for the purpose
of determining whether probable cause exists to seize
books and films that are presumptively protected
violates the First and Fourth Amendments of the
United Stutte Cometh. oes evs cece wees seus
CNS 8. ssa Wow ck ene chek Meee
Appendices
Appendix A. Opinion of the United States Court of
Appeals for the Firat Croat... oo cc cca vccnstevans
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17
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Page
Appendix B. Memorandum and Order of the United
States District Court for the District of Massachusetts A-9
Appendix C. Constitutional Provisions and Statutes
TEE S55 waa We nv aessececcccsncocese A-16
TABLE OF CASES
Page
DiBella v. United States, 369 U.S. 121 (1962) ........ 7, 8,9
Heller v. New York, 413 U.S. 483 (1973) ............ 15
Lee Art Theater, Inc. v. Virginia, 392 U.S. 636 (1968). . 15
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) .15, 16,17
Marcus v. Search Warrants, 367 U.S. 717 (1961)...... 15
A Quantity of Copies of Books v. Kansas, 378 U.S. 205
CECE GUEE EGE basse 6eeesececccccces 15
Roaden v. Kentucky, 413 U.S. 496 (1973) ........... 15
Stanford v. Texas, 379 U.S. 476, 485 (1965). ......... 13
In The
Supreme Court of the United States
October Term, 1979
No.
IMPERIAL DISTRIBUTORS, INC.; LITTLE BOOK
SHOPS, INC.; PALACE BOOK SHOP, INC. d/b/a
PALACE THEATER; K.I.M. REALTY, INC.; GEMINI
ENTERPRISES, INC.; EAGLE PUBLICATIONS,
LTD.; and KENNETH GUARINO,
Petitioners,
vs.
THE UNITED STATES OF AMERICA; EDWARD F.
HARRINGTON; CHARLES E. CHASE; EWARD M.
KAVANAGH, S.A.; PHILIP G. REILLY, S.A,;
COLONEL ANGELO RICCI; SGT. VINCENT VESPIA,
JR.; SGT. RONALD J. URSO; DET. ALFRED HAMEL;
and LAWRENCE GILLIGAN, S.A.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Petitioners, IMPERIAL DISTRIBUTORS, INC.; LIT-
TLE BOOK SHOPS, INC.; PALACE BOOK SHOP, INC.
d/b/a PALACE THEATER; K.I.M. REALTY, INC.;
GEMINI ENTERPRISES, INC.; EAGLE
PUBLICATIONS, LTD.; and KENNETH GUARINO, pray
that a writ of certiorari issue to review the judgment of the
United States Court of Appeals for the First Circuit entered on
March 21, 1980.
to
Opinion Below
The Court of Appeals opinion, dated March 21, 1980, is not
yet reported, but is printed in Appendix A, infra, at P. A-1, et
seq. The memorandum and order of the district court is printed
in Appendix B, infra, at p. B-1, et seq.
Jurisdiction
On May 15, 1979 petitioners brought an action in the United
States District Court of Massachusetts under Rule 41 of the
Federal Rules of Criminal Procedure for the return of all the
property illegally seized by the Government from petitioners’
truck in Boston on February 28, 1978. On May 30, 1979 after a
hearing, the district court denied petitioners’ request on the
grounds that the seizure violated no constitutional rights of
petitioners.*
On March 21, 1980 the First Circuit dismissed the appeal for
lack of jurisdiction, holding that the purpose of petitioners’
motion in the district court was the suppression of evidence, not
the return of property seized, thus rendering the order a non-
appealable interlocutory decision.
This petition for a writ of certiorari is filed within ninety days
of that decision. This Court’s jurisdiction is invoked under 28
U.S.C. §1254(1).
Constitutional Provisions and
Statutes Involved
The constitutional provisions and statutes involved are
contained in our Appendix C.
*Further, the order denied the motion with respect to any property seized in
Rhode Island because the material was not confiscated in the District of
Massachusetts.
Questions Presented
1. How long must a citizen wait before an application for
the return of his illegally seized books and films can be suc-
cessfully made?
2. Does a search warrant’s failure to describe the books and
films sought to be seized, as well as the magistrate’s participa-
tion in the search, violate the First and Fourth Amendments to
the United States Constitution.
Preliminary Statement
On February 28, 1978 an order and a search warrant were
issued in Boston to search a truck full of films and magazines.
Neither the order nor the warrant authorized the seizure of any
materials whatsoever. They directed merely that agents
determine whether there was probable cause for a possible
future seizure.
Pursuant to these illegal documents, the entire truck was
confiscated and impounded. Later at the FBI garage a
magistrate participated in the search, determining that certain
films and magazines were obscene. Thereafter, those items were
seized from the impounded truck.
Petitioners immediately moved for the return of their
property since no criminal action had been instituted. They
unsuccessfully pursued this remedy through the federal courts
in Rhode Island which eventually held that Massachusetts was
the proper forum for vindication of these rights.
On May 30, 1979 a hearing was held in the District Court of
Massachusetts. In upholding the search, the court unjustifiably
sanctioned the novel and unprecedented two-step procedure of
issuing an “order” to search materials to determine if probable
cause exists for their ultimate seizure. The United States Court
of Appeals for the First Circuit dismissed the appeal, holding
that the order was a non-appealable interlocutory order.
In a few words that is what this case is all about except to say
that it raises the critical issue of whether a citizen can be denied
all remedies to recover his property where the prosecutor has
deliberately refused to institute a criminal action.
Statement of Facts
The legal voyage of petitioners’ case has ranged through the
federal courts of Rhode Island, up to the edge of this Court,*
back to the federal district court in Massachusetts, through the
First Circuit Court of Appeals and ultimately has once again
come to rest on the shores of this Court. Despite this rather
complex procedural background, we have tried to recruit only
the most relevant facts from this rather long and cumbersome
history of the case. A study of the procedural events is aided by
dividing them under convenient subheadings.
The Search of the Truck
On February 28, 1978, Magistrate Lawrence P. Cohen of
Boston, Massachusetts, issued an “‘order’’ commanding federal
agents to search one of petitioners’ trucks:
+s
. in order to determine whether or not there exists
therein obscene materials of the same tenor as ‘Turkish
Delight’, ‘Sex Photo Fiction No. 1’ and ‘Sex Photo
Fiction No. 2’”’ (emphasis supplied).
A search warrant was also issued directing a search of the same
truck for:
6s
... @ quantity of obscene materials including books,
pamphlets, magazines, newspapers, films and prints.”
No specific titles or descriptions were given to guide the
agents in their quest; they were simply permitted to roam at will
*Petitioners barely missed gaining entry to this Court in April, 1979 when
three justices voted in favor of granting certiorari.
Oa |
in search of so-called “obscene materials of the same
tenor... .°’ The order and warrant were based upon an FBI
agent's affidavit, apparently unsigned. Based upon this order
and search warrant, petitioners’ truck was stopped; the driver
was arrested; and the entire truck and its contents, including
magazines, films, and business records, were seized and im-
pounded at the FBI garage in Boston. This massive seizure was
conducted without any prior judicial determination that the
van’s contents were obscene.*
As a result of this illegal seizure, an FBI agent examined the
books and films and concluded they were obscene. He then
prepared a second affidavit requesting that the magistrate issue
a “search warrent”’ for nine magazines and five films already
confiscated. The agent’s affidavit did not describe the contents
of the books or films, foreclosing a neutral and detached
determination of their obscenity by the magistrate. Business
records seen in the truck were also identified as property which
should be seized.
Thereafter, the federal magistrate went to the FBI garage
and examined the contents of the impounded truck. He issued a
second warrant authorizing a “seizure” of three of each of the
magazines and two of each of the films which had already been
seized. Confiscation of all petitioners’ business records was also
ordered. The magistrate made no specific findings regarding
each of the magazines or films seized. The significant events of
February 28, 1978 are outlined on the following page.
*The charges lodged against the driver were eventually dismissed after the
government elected not to prosecute. However, the nine magazines and five
films found in the van were “used”’ to gain search warrants for several
subsequent searches as will be described infra.
Outline of Events of February 28, 1978
11:05a.m. Magistrate issues order authorizing
search of truck to determine
whether probable cause exists;
Search warrant issued which failed to
specify magazines or to command
seizure.
Imperial Distributors’ truck stopped
and searched; driver arrested;
truck impounded at FBI head-
quarters.
FBI Garage
Search by FBI continued and contents
of truck catalogued and second
application for search warrant
prepared;
Magistrate appears at FBI headquarters
and participates in search,
issuing warrant for materials
already seized;
5:30 p.m. Magistrate enters order justifying
prior seizure and offers post-
seizure adversary hearing.
Procedural History
On March 29, 1978 petitioners moved in federal district court
in Rhode Island for return of their illegally seized property. On
December 5, 1978 the Honorable Raymond G. Pettine ordered
petitioners to seek relief in the district court in Massachusetts.
In response, petitioners filed a petition for a writ of mandamus
in the First Circuit, asking that Judge Pettine be directed to
enter a judgment on the merits. The First Circuit denied the
application without opinion on January 4, 1979, thus agreeing
that the proper forum for petitioners’ return motion was the
District of Massachusetts. (A petition to this Court for a writ of
certiorari was denied.) On May 15, 1979 petitioners filed a
motion for return of the seized property and/or suppression
under Rule 41. On May 30, 1979 a hearing was conducted
before the Honorable Walter J. Skinner.
At the hearing, the court seemed very troubled by the
procedures employed by the government in seizing the van by
the “two-step process.’’* However, in his Memorandum and
Order of July 12, 1979, Judge Skinner ruled that “the two-stage
procedure employed in this case is a reasonable response to the
problem [of obtaining a magistrate’s review of allegedly obscene
material in the hands of wholesalers and distributors] .. .”’
Moreover, the court failed to come to grips with the most basic
flaw in the procedure leading to the seizure of the books and
films — namely, the magistrate’s extraordinary ‘‘order’’ per-
mitting a search for materials of the same “tenor” as Turkish
Delight, Sex Photo Fiction No. 1, and Sex Photo Fiction No. 2.
Rather, Judge Skinner contrived a novel basis for justifying the
search conducted and denied petitioners’ motion for a return of
the seized property.
The First Circuit dismissed petitioners’ appeal for lack of
jurisdiction, holding that the motion seeking return of the
property was essentially a suppression motion and therefore its
denial was a non-appealable interlocutory order. The court
based its ruling on DiBella v. United States, 369 U.S. 121
(1962), and relegated petitioners to the intolerable prospect of
an endless delay in getting their property back. The Court held,
*THE COURT: “What are you protecting them from? You do the very
thing you claim to protect them from when you stop them in the middle of
the street and arrest the driver. Good grief! I don’t understand that. I don’t
see anything in the rules or any case I've ever read which authorizes that
kind of a procedure.”
“If there is an indictment and conviction, the constitutionality
of the search and seizure will be reviewed. If there is no in-
dictment and the property is not returned, [petitioners] can then
move for its return.”” To date, petitioners have waited 27
months without any form of relief.
The Court of Appeals, by refusing to consider petitioners’
case, has sentenced them to a procedural purgatory. How long
must petitioners reasonably be expected to wait before their
legitimate Fourth Amendment claims will be vindicated? With
this critical question in mind, we turn immediately to the
substantial reasons why the writ should be granted.
Reasons for Granting the Writ
This Court's decision in DiBella v. United States, 369
U.S. 121 (1962), does not require the dismissal of the appeal
of the order denying petitioners’ motion for return,
especially when there has been no indictment 27 months
after the illegal seizure.
Twenty-seven months have passed and no criminal
prosecution has been commenced against petitioners Imperial
Distributors or Kenneth Guarino or any other aggrieved parties
who were subjected to the unlawful seizure of their property on
February 28, 1978. On May 15, 1979, when the seized items had
not been voluntarily returned and no indictment was forth-
coming, petitioners moved in the United States District Court
for the District of Massachusetts pursuant to Federal Rule of
Criminal Procedure 41(e) for ‘‘return of property and entry of
appropriate writs to effectuate the relief requested. . . .””
A hearing was conducted before the Honorable Walter J.
Skinner on May 30, 1979. In a decision filed July 12, 1979 the
court denied the “‘motion to return seized property.’’ On appeal
the First Circuit held that the “primary purpose of the motion
9
was suppression . . .”’ and thus this Court’s decision in DiBella
v. United States, 369 U.S. 121 (1962), precluded appeal of the
court’s order denying the motion. However, the First Circuit
has offered no answer to petitioners’ obvious question of how
long they must wait for an indictment before their property can
be returned. In DiBella, this Court wrote:
“When at the time of ruling there is outstanding a
complaint, or a detention or release on bail following
arrest, or an arraignment, information or indictment —
in each such case the order on a suppression motion must
be treated as ‘but a step in the criminal case preliminary
to the trial thereof’ ”’ (369 U.S. at 131).
With respect to the status of the “‘case”’ in the district court,
there is outstanding:
1. Nocomplaint;
2. No arrest;
3. No detention or release on bail following arrest;
4. No arraignment;
5. No information; and
6. No indictment.
The Government hes been in illegal possession of petitioners’
property for almost two and a half years. It tests credibility to
ask this Court to believe that it takes approximately 27 months
to investigate and present an obscenity case to a grand jury.
Under these circumstances the Government has delayed
unreasonably in commencing the proceedings. Since there is no
prosecution in esse, the motion was one of return and thus is
appealable. Moreover, any prosecution is unforeseeable at this
time and therefore too remote from petitioners’ motion to
deprive the district court’s order of finality. The First Circuit's
holding has effectively denied appellate review of petitioners’
justifiable claims of illegal search and seizure.
10
Unless this Court grants the petition for certiorari to review
the erroneous judgment below, petitioners as the aggrieved
parties have no adequate remedy at law and remain at the
mercy of the whims of the prosecutor's office. If the Govern-
ment has been in possession of the materials for nearly two and
a half years and still not made any accusation, one cannot
reasonably predict when, or if, one will ever be forthcoming.
Second, the seizure of presumptively protected materials has
irreparably injured petitioners’ business. Finally, petitioners’
major claim revolves around the illegal seizure without probable
cause and in defiance of a legal and proper warrant and prior
judicial scrutiny of presumptively protected materials. The
legality vel non of the search and seizure will remain unan-
swered unless this Court grants certiorari.
The importance of this seizure is magnified by the historical
events that followed. The parade of horrors that occurred in the
wake of this original seizure is staggering. The fruits of the
Boston truck seizure and all information that was derived from
this unwarranted excursion were transmitted to another FBI
agent who made ®n application before a federal magistrate in
Rhode Island to search Imperial Distributors’ premises in
Providence. The entire core of that application was the agent's
first affidavit upon which the primary illegal order and warrant
were issued. A warrant for Imperial Distributors was issued by
the federal magistrate in Rhode Island on the same day,
February 28, 1978. The warrant authorized the seizure of all the
magazines and films found in the van; the three magazines
which had been originally brought to the Massachusetts
magistrate (Sex Photo Fiction No. 1, Sex Photo Fiction No. 2,
and Turkish Delight) and which were the subject of the first
“tenor” order; and various business records of Imperial
Distributors.
The search of Imperial Distributors was conducted by
numerous federal, state, and local agents who seized every
11
conceivable business and personal record of Imperial
Distributors, Kenneth Guarino, Eagle Productions, Ltd., Little
Book Shops, Inc., Palace Book Shop, Inc. d/b/a Palace
Theater, K.I.M. Realty, Inc., and Gemini Enterprises, Inc.,
none of which people or organizations were named in the
warrant. None of the materials were ever subjected to any
judicial scrutiny. State police also confiscated much material
and presented it to a Rhode Island state judge.
On May 2, 1978 a Rhode Island state judge issued a warrant
for Imperial Distributors premises which was executed by
Rhode Island police and federal agents. None of the material
named in the warrant was seized but 21 other films were con-
fiscated. In addition, the officers maliciously and intentionally
destroyed and/or made unsuitable for dissemination hundreds
of presumptively protected materials.
On March 8, 1978 respondents Reilly, Hamel and Urso
appeared at 208 Laurel Hill Avenue, Providence on the pretext
of a fire inspection. In the absence of a warrant, they scoured
the entire Imperial Distributors premises to gain illegal
knowledge to exploit in yet another unlawful warrant.
On March 10, 1978 a Rhode Island judge sitting in Cranston
issued a warrant for business records of Imperial Distributors
and Eagle Productions, Ltd. This third entry of the corporation
resulted in another massive seizure of at least 312 films and
magazines (from 33-A Oakdale Avenue, Johnston, iihode
Island).
Thus it can be seen that the February 28, 1978 search of the
truck becomes the linchpin of all the other illegal searches.
What the government has effectively done is to forestall
petitioners’ remedies in other jurisdictions, (e.g., Rhode Island)
by simply withholding evidence in this case, thereby im-
mobilizing all of petitioners’ legitimate Fourth Amendment
claims.
12
If these procedures are endorsed by this Court, the Fourth
Amendment, as well as the First Amendment, will become a
Flanders Field. The government will effectively be able to
frustrate all efforts of a citizen to gain the return of his property
by simply declining to initiate criminal prosecution. This
grievous situation is constitutionally intolerable and therefore
the case deserves the Court’s attention.
Il
This case presents a unique question, never before considered
by this Court. That issue, simply stated, is:
(1) Can a magistrate issue an order to stop and search a
truck for the purpose of determining whether probable
cause exists to seize books and films that are presump-
tively protected by the First Amendment?
A subsidiary issue is:
(2) Should a new exception be made to an old and well
established tenet that, to be valid, a search warrant must
particularly describe the items to be seized, especially
when these items come under the protective mantle of the
First Amendment?
If this Court is to keep faith with an unbroken series of cases
extending over a long stretch of the First Amendment’s history,
the answer to both of these questions must be ‘“‘no”’. This un-
precedented issuance of an order to search for probable cause is
in direct defiance of Rule 41 and is unsupported by any statute
or case. The constitutional defects which plague the order of
seizure are numerous, as well as obvious. For example, the
order and warrant fail to conform to the most rudimentary
requirements of Rule 41(c)(1). The important procedural
safeguards which must be fulfilled before a citizen’s property
can be taken are:
(1) A finding of probable cause;
(2) Identification of the property;
13 -
(3) Naming or describing person or place to be searched;
(4) Execution of the warrant within ten days of issuance;
(5) Designation of a federal magistrate for return.
The order and warrant issued which resv'*ed in the truck's
seizure failed to meet any of these prerequisites. For instance:
(1) The order does not satisfy the requirement of a finding of
probable cause by the issuing magistrate;
(2) Neither the order nor the warrant describe in any detail
whatsoever the property to be seized;
(3) The order does not direct seizure — it merely mandates a
search to determine the existence of probable cause;
(4) The order lacks any time limitation for execution;
(5) The order fails to provide for timely execution;
(6) The order does not set forth any procedures for a return.
From any view, this challenged warrant contravenes every
branch of the law governing the issuance of search warrants and
thus cannot be sustained. Furthermore, the most blatant defect,
the failure to particularize, was further exacerbated by the
contemporaneous issuance of the even more deficient document
loosely labeled a search warrant. This requirement of par-
ticularity, which the warrant failed to meet, ‘is to be accorded
the most scrupulous exactitude when the ‘things’ are books, and
the basis for their seizure is the ideas which they contain.”
Stanford v. Texas, 379 U.S. 476, 485 (1965).
Here there was a complete failure to specify the books and
films to be seized. The first warrant which authorized the
seizure of ‘‘a quantity of obscene materials including books,
pamphlets, magazines, newspapers, films and prints’, without
specifying in any way the actual materials to be confiscated,
failed to limit the discretion of the agents and unlawfully
permitted them to rummage through the contents of the van and
seize what, in their opinion, offended the law. This is not the
14
proper function of a police officer; rather it is to be fulfilled by a
neutral and detached magistrate whose task it is to ‘focus
searchingly’’ on the question of obscenity.
Moreover, even the order which authorized the initial search
for ‘materials of the same tenor as Turkish Delight, Sex Photo
Fiction No. 1 and Sex Photo Fiction No. 2”’ acted as no con-
stitutional balm for the deficiencies of the initial search warrant,
and indeed, the rather foreign process was infected with its own
legal shortcomings. For example, one cannot even ascertain
from the so-called “order” the specific qualities which come
within the elusive phrase the ‘same tenor’ of materials iden-
tified. We do not know whether these publications are maga-
zines » films. Nor does the unsigned affidavit of the agent fill
this constitutional void.* He merely gave a cursory description
of the front and back cover of Turkish Delight and an extremely
broad summary of the contents of Sex Photo Fiction No. 1 and
Sex Photo Fiction No. 2 which failed to in any way file down the
expansive provisions of the order. Since neither the preeminent
order and search warrant specified with requisite particularity
the materials to be seized from the van, especially in the context
of the First Amendment, all items confiscated must be returned
and/or suppressed on this ground alone.**
*It was conceded at oral argument that the first order and warrant did not
have a copy of the agent's affidavit attached.
**Further, the only access to the contents of the van was gained pursuant to
the initial unlawful order and warrant. All other materials seized pursuant
to all subsequent process must be suppressed and/or returned because such
materials constitute the illegal booty of the initial and primary wrongful
entry. See supra.
15
No Prior Judicial Determination
of Obscenity
Another constitutional failure involves the lack of any
detached analysis of the publications and films by a neutral
magistrate prior to issuing the first order and warrant. Thus,
there is no proper finding of probable cause for the seizure of the
actual materials confiscated.
Prior to issuing the facially deficient order, which was the
source of the subsequent order and warrants, the magistrate
allegedly examined only Turkish Delight, Sex Photo Fiction
No. 1 and Sex Photo Fiction No. 2. These publications,
however, were never associated with his particular van, nor
were they for that matter, even found in the truck. Thus, the
nine publications and five films which were taken from the van
were only examined by a magistrate after their seizure.
It has been repeatedly held that ordinary rules of arrest,
search and seizure are inapplicable where First Amendment
freedoms are concerned. Lo-Ji Sales, Inc. v. New York, 442
U.S. 319 (1979); Roaden v. Kentucky, 413 U.S. 496 (1973);
Heller v. New York, 413 U.S. 483 (1973); Lee Art Theater,
Inc. v. Virginia, 392 U.S. 636 (1968); A Quantity of Copies of
Books v. Kansas, 378 U.S. 205 (1964); Marcus v. Search
Warrants, 367 U.S. 717 (1961).
The prerequisite of a prior judicial investigation of obscenity
guarantees to all of us that the sensitive determination of
probable cause concerning the obscenity of materials will be
made by an impartial magistrate. This decision cannot be left to
those who are involved in the competitive enterprise of
prosecuting crimes. Here, there was no question that the first
order and warrant permitted the agent to act as the sole arbiter
of obscenity. Furthermore, the magistrate’s inspection of the
materials at the FBI garage does not satisfy this well-reasoned
rule.
16
Recently, this Court condemned the procedures followed in
Lo-Ji Sales, inc. v. New York, 442 U.S. 319 (1979), by
declaring they were ‘‘reminiscent of the general warrant or writ
of assistance of the 18th century against which the Fourth
Amendment was intended to protect’’ (Id. ai 325). The Court
wrote:
“Based on the conclusory statement of the police in-
vestigator that other similarly obscene materials would
be found at the store, the warrant left it entirely to the
discretion of the officials conducting the search to decide
what items were likely obscene and to accomplish their
seizure. The Fourth Amendment does not permit such
action. ... Nor does the Fourth Amendment coun-
tenance open-ended warrants, to be completed while a
search is being conducted and items seized or after the
seizure has been carried out” (Id.; emphasis supplied).
The Court rejected the state's contention that the presence
and participation of the Town Justice ensured that no items
would be seized absent probable cause to believe they were
obscene and that his presence was tantamount to an immediate
adversary hearing on the issue.
Our case presents a factual situation which is a variation of
that condemned by this Court in Lo-Ji. The first order and
warrant were, in essence, open-ended writs designed to illegally
gather information about the contents of the trucks, which was
unlawfully seized on the streets of Boston. The second warrant
which purported to authorize a seizure of specific publications
and films was “‘filled in’’ after the truck was seized and searched
pursuant to the first order. A novel and unprecedented two-step
procedure has been created here which will invite and authorize
magistrates throughout the country to issue “‘orders’’ to
determine probable cause, prior to the issuance of the search
warrant to seize the actual property. Such practice is con-
stitutionally intolerable. Thus, it commands no more respect
than the warrant condemned in Lo-Ji Sales, Inc.
17
Under the clear and unmistakable language of Lo-Ji,
Marcus, Quantity of Books, Lee Art Theatre, and Roaden, the
unauthorized search and seizure challenged here must be struck
down. It would be a serious insult to the scholarship of this
Court to suggest that the unprecedented manner of this seizure
can be tolerated under these well-established principles. For all
the foregoing reasons, the petition for certiorari should be
granted.
CONCLUSION
For all the foregoing reasons and authorities, the petition for
certiorari should be granted.
Respectfully submitted,
Herald Price Fahringer, Esq.
Paul J. Cambria, Jr., Esq.
Attorneys for Petitioners
Barbara Davies Eberl, Esq.
On the Petition
One Niagara Square
Buffalo, New York 14202
(716) 849-1333
Nelson Baker, Esq.
Ten Post Office Square
Suite 615
Boston, Massachusetts 02109
(617) 482-5177
William E. Seekford, Esq.
1302 Penthouse
28 Allegheny Avenue
Towson, Maryland 21204
(301) 821-6868
Of Counsel
June, 1980
Appendices
A-1
APPENDIX A—Opinion of the United States
Court of Appeals for the First Circuit
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 79-1361
IMPERIAL DISTRIBUTORS, INC., ET AL.,
Plaintiffs- Appellants,
‘Uv.
UNITED STATES OF AMERICA, ET AL.,
Defendants- Appellees.
Appeal from the United States District Court
For the District of Massachusetts
[Hon. Walter Jay Skinner, U.S. District Judge}
Before
Coffin, Chief Judge,
Bownes, Circuit Judge,
Wyzanski,* Senior District Judge.
Herald Price Fahringer, with whom Paul J. Cambria, Jr.,
Barbara Davies Eberl, Lipsitz, Green, Fahringer, Roll,
Schuller & James, William E. Seekford, and Nelson Baker were
on brief, for appellants.
Charles E. Chase, Assistant United States Attorney, with
whom Edward F. Harrington, United States Attorney, was on
brief, for appellees.
*Of the District of Massachusetts, sitting by designation.
A-2
APPENDIX A—Opinion of the United States
Court of Appeals for the First Circuit
March 21, 1980
Bownes, Circuit Judge. Petitioners-appellants! challenge the
denial of their preindictment motion for the return and/or
suppression, pursuant to Fed.R.Crim.P. 41l(e), of business
records, films, and magazines seized under authority of a
warrant by federal agents from a truck owned by petitioner
Guarino on February 28, 1978. The motion is predicated upon
petitioners’ contention that the underlying affidavit failed to
establish a nexus between the materials sought and the van
seized; that much of the supporting information was stale; that
the magistrate, using a bifurcated approach, improperly found
that there was probable cause; that the warrant contained
numerous facial defects; and that there was no preseizure
judicial determination of obscenity.
The procedural travel of this case began shortly after the
seizure with the filing of a motion for return of property under
Rule 41(e) in the United States District Court for the District of
Rhode Island. At the conclusion of a two-day trial, Judge
Peitine denied the motion because it was within the purview of
the Massachusetts District Court, and stayed the action *‘pend-
ing the decision ofthe Massachusetts District Court.’”’ We
denied appellants’ petition for a writ of mandamus to order
Judge Pettine to dissolve his abstention order and to enter a
judgment on the merits (No. 78-1559, January 4, 1979); and the
Supreme Court of the United States denied a petition for writ of
certiorari, U.S. , 99 S.Ct. 2042, 60 L.Ed.2d 402
(1979). Petitioners next filed a motion for the return of their
property with the United States District Court for the District of
IPetitioners in this action are six Rhode Island corporations: Imperial
Distributors, Inc.; Little Book Shops, Inc., Palace Book Shop, Inc. d/b/a
Palace Theater; K.I.M. Realty, Inc.; Gemini Enterprises, Inc.; Eagle
Publications, Ltd.; and Kenneth Guarino, an officer of Imperial.
A-3
APPENDIX A—Opinion of the United States
Court of Appeals for the First Circuit
Massachusetts. In its opinion reported at 473 F. Supp. 294 (D.
Mass. 1979), the district court ruled that the three named
magazines were obscene; that the bifurcated search and seizure
was a “reasonable response to the problem’”’ of establishing
probable cause that wholesalers and distributors were engaging
in the illegal interstate shipping of obscene materials; denied the
motion for return of property seized within the District of
Rhode Island on jurisdictional grounds; and denied the motion
concerning property seized in Boston ‘“‘because the seizure
violated no constitutional rights of the plaintiffs.’’ Jd. at 298.
Appeal to this court ensued.
Appellee contends that the order appealed from is_in-
terlocutory and not a final order subject to appellate review
under 28 U.S.C. §1291.? Petitioners argue that it is a final order
and further assert that appellee should be estopped from raising
its jurisdictional objections because it did not move ‘‘to dismiss
the appeal upon service of the notice’; because ‘‘the United
States Attorney engaged in negotiations with defense counsel
regarding the contents of the appendix’’; and because appellants
“expended great effort, time and expense in perfecting the
appeal.”
The question of appellate jurisdiction cannot be decided on
the grounds of estoppel. American Fire & Casualty Co. v. Finn,
341 U.S. 6, 17-18 (1951). Should we conclude that the order is
interlocutory, we must dismiss the appeal; the question of a
court’s jurisdiction may be raised at any time by the parties or
sua sponte by the court. Compagnie Nationale Air France v.
Castano, 358 F.2d 203, 206 (1st Cir. 1966).
228 U.S.C. § 1291 provides: “The courts of appeal shall have jurisdiction of
appeals from all final decisions of the district courts.’ None of the
provisions for appealability of interlocutory decisions specified in 28 U.S.C.
§ 1292 pertain here.
A-4
APPENDIX A—-Opinion of the United States
Court of Appeals for the First Circuit
Appellate courts cannot review interlocutory decisions,
absent specific congressional authorization, because to do so
would encourage ‘piecemeal disposition on appeal of what for
practical purposes is a single controversy. . . .’’ Cobbledick v.
United States, 309 U.S. 323, 325 (1940). The “‘finality doc-
trine,’’ codified in 28 U.S.C. §1291, proscribes ‘‘appeal from
any decision which is tentative, informal or incomplete.’ Cohen
v. Beneficial Loan Corp., 337 U.S. 541, 546 (1949).
In DiBella vy. United States, 369 U.S. 121 (1962), the
Supreme Court directly addressed the question of whether the
denial of a preindictment Rule 4l(e) motion for the return and
suppression of illegally seized property was appealable. It held:
We hold, accordingly, that the mere circumstance of a
pre-indictment motion does not transmute the ensuing
evidentiary ruling into an independent proceeding
begetting finality even for purposes of appealability.
Presentations before a United States Commissioner, Go-
Bart Co. v. United States, 282 U.S. 344, 352-354, as well
as before a grand jury, Cobbledick v. United States, 309
U.S. 323, 327, are parts of the federal prosecutorial
system leading to a criminal trial. Orders granting or
denying suppression in the wake of such proceedings are
truly interlocutory, for the criminal trial is then fairly in
train. When at the time of ruling there is outstanding a
complaint, or a detention or release on bail following
arrest, or an arraignment, information, or indictment —
in each such case the order on a suppression motion must
be treated as ‘but a step in the criminal case preliminary
to the trial thereof.’’ Cogen v. United States, 278 U.S.
221, 227. Only if the motion is solely for return of
property and is in no way tied to a criminal prosecution
A-5
APPENDIX A—Opinion of the United States
Court of Appeals for the First Circuit
in esse against the movant can the proceedings be
regarded as independent.
Id. at 131-32.
In Shea v. Gabriel, 520 F.2d 879, 881-82 (1st Cir. 1975), we
grappled with, but found unnecessary to resolve, the two
questions inherent in the last sentence of the DiBella holding.
“What does ‘solely’ mean in this context? When is a criminal
prosecution in esse?’’ In discussing the first question, we
pointed out that some courts have held that a motion is not
“solely for return of property’’ when it also seeks suppression,
while others have allowed an appeal from that part of the order
denying return of the property. We observed that splitting a
41(e) motion into two parts for a DiBella analysis exalted form
over substance. Id. at 82, n.6.
The words of Fed.R.Crim.P. 41(e) effectively eliminate any
distinction between a motion for return of property and a
motion to suppress. The rule provides:
(e) Motion for Return of Property. A person aggrieved
by an unlawful search and seizure may move the district
court for the district in which the property was seized for
the return of the property on the ground that he is en-
titled to lawful possession of the property which was
illegally seized. The judge shall receive evidence on any
issue of fact necessary to the decision of the motion. If
the motion is granted the property shall be restored and
it shall not be admissible in evidence at any hearing or
trial. If a motion for return of property is made or comes
on for hearing in the district of trial after an indictment
or information is filed, it shall be treated also as a motion
to suppress under Rule 12.
A-6
APPENDIX A—Opinion of the United States
Court of Appeals for the First Circuit
Under the rule, if the property is restored, “it shall not be
admissible in evidence at any hearing or trial.’’ And a motion
for return of the property is to be treated as one to suppress after
an information or an indictment is filed. Appealability cannot
turn on the title of the motion since the rule gives the same effect
to both and merges a motion for return of property into one for
suppression after indictment.
Appellants, here, entitled their motion, ‘‘Motion For Return
Of Property And Entry Of Appropriate Writs To Effectuate
The Relief Requested Herein."” No mention is made in the
twenty-eight page motion of Fed.R.Crim.P. 4lle), but the
separate notice of motion filed in the district court states, ‘a
motion will be made pursuant to Rule 41 of the Federal Rules of
Criminal Procedure for a return of property and other further
appropriate relief.’’ And in their reply brief, appellants state,
“plaintiffs-appellants moved in the U.S. District Court for the
District of Massachusetts pursuant to Federal Rule of Criminal
Procedure 41(e) for ‘return of property and entry of appropriate
writs to effectuate the relief requested....’’ The relief
requested was to order the searches and seizures of those
warrants herein to be illegal and quashed, the evidence derived
thereby suppressed, and order the return of the same... .”
There can be no doubt that, regardless of its caption, this was a
motion under Fed.R.Crim.P. 41(e).
After a review of what transpired and an examination of
appellants’ ,otions and briefs, we conclude that the primary
purpose oi ihe motion was suppression, not return of the
materials seized. Three copies of nine magazines and two copies
of five films out of a total of thirty-eight cartons of magazines
and films were seized. Original business records were also
taken, but the government offered to make copies available to
appellants. To date, appellants have not responded to this offer.
A-7
APPENDIX A—Opinion of the United States
Court of Appeals for the First Circuit
Significantly, appellants have not argued that they need the
property seized and that irreparable harm will result from
failure to return it. See Mr. Lucky Messenger Service, Inc. v.
United States, 587 F.2d 15, 17 (7th Cir. 1978) (motion solely for
return of property). Even were we to follow those courts that
split a motion for return and suppression into two parts, we
could not do so here because this is solely a motion to suppress.
What appellants seek is to prevent the grand jury that is in-
vestigating them and their activities from considering the
materials seized and to bar their use as evidence in any sub-
sequent trial. Since the motion here primarily seeks the sup-
pression of evidence, it does not satisfy the ‘solely for return”’
requirement of DiBella. See Application of United States, 427
F.2d 1140, 1141 (5th Cir. 1970).
We recognize, however, that DiBella is not on all fours with
this case. In DiBella, there was arrest, arraignment and indict-
ment; here, we have a grand jury investigation that has ex-
tended from March 30, 1978, to the present without any indict-
ment. DiBella holds that a suppression motion is to be treated
as a step in the criminal process preliminary to the trial,
‘[w]hen at the time of ruling there is outstanding a complaint,
or a detention or release on bail following arrest, or an arraign-
ment, information, or indictment. . . .”’ 369 U.S. at 131. None
of this has taken place here. We think, however, that where the
motion is primarily for suppression of potential evidence and
where the person affected is the subject of an ongoing grand jury
investigation that the “finality doctrine’ of 28 U.S.C. §1291
and the teachings of Cobbledick v. United States, 309 U.S. 323,
and Cohen v. Beneficial Loan Corp., 337 U.S. 541, preclude
appeal at this juncture.
We have been unable to find any cases holding that the denial
of a suppression motion was appealable where there was an
A-8
APPENDIX A—Opinion of the United States
Court of Appeals for the First Circuit
ongoing grand jury proceeding. In a case analogous to this,
Church of Scientology of California vy. United States, 591 F.2d
933 (9th Cir. 1979), cert. denied, 48 U.S.L.W. 3463 (Jan. 22,
1980), the Court held that such a motion was not appealable.
After reviewing the pertinent cases, it noted, ‘‘[t]he principle
that runs through all of these authorities is that an ongoing
criminal proceeding is not to be interrupted by an appeal from
an order denying suppression of evidence that may be used in
that proceeding.” Id. at 536. The Fifth Circuit in United States
v. Glassman, 533 F.2d 262 (Sth Cir. 1976), held:
This motion, made pursuant to Fed.R.Crim.P. 41(e),
was made prior to appellant's indictment, but “‘the mere
circumstance of a preindictment motion”’ does not make
the order final and appealable. DiBella v. United States,
369 U.S. 121, 131, 82 S.Ct. 654, 660, 7 L.Ed.2d 614, 621
(1962). Only if this motion was a collateral attempt to
retrieve property and not an effort to suppress evidence
in related criminal proceedings is it appealable.
Id. at 263. See also Simons v. United States, 592 F.2d 251, 252
(5th Cir. 1979).
This case does not fall within the limited class ‘‘where denial
of immediate review would render impossible any review what-
soever of an individual's claims. . . .’’ United States v. Ryan,
402 U.S. 530, 533 (1971). If there is an indictment and con-
viction, the constitutionality of the search and seizure will be
reviewed. If there is no indictment and the property is not
returned, appellants can then move for its return.
Appeal dismissed for lack of jurisdiction.
A-9
APPENDIX B—Memorandum and Order of the
United States District Court for the
District of Massachusetts
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
IMPERIAL DISTRIBUTORS, INC., ET AL.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants.
M.B.D. No. 79-165
MEMORANDUM AND ORDER
July 12, 1979
SKINNER, D.J.
This is a motion for the return of magazines and business
records seized pursuant to warrants issued by magistrates in this
district and in the district of Rhode Island. A similar motion
was presented to the District Court of Rhode Island. Chief
Judge Pettine of that court declined to entertain the motion on
the ground that the property was being held for consideration by
a grand jury in the District of Massachusetts, that an in-
dictment based on this property might be returned, that this
matter could be determined on a motion to suppress in the
District of Massachusetts, and that he should not interfere with
the progress of a criminal case in Massachusetts. A petition for a
writ of mandamus directing him to exercise jurisdiction under
F.R.Crim.P. 41(e) was denied by the Court of Appeals (No. 78-
1559, January 4, 1979), and a petition for writ of certiorari was
denied by the Supreme Court of the United States (No. 78-1247,
April 23, 1979).
A-10
APPENDIX B—Memorandum and Order of the
United States District Court for the
District of Massachusetts
Suppression of material seized in Rhode Island (or anywhere
else) would be properly before a judge of this district if the
government intended to use such material in a criminal action
returned here. Under Rule 41(e) however, the motion is ad-
dressed only to the return of property seized within this district.
Disposition of the property seized in Rhode Island must await
the filing of a criminal action, or, if it appears that no in-
dictment will be returned, reconsideration by the district judge
in Rhode Island. The same principles apply to property seized
under warrants issued by state courts of Rhode Island.
I will accordingly consider only the material seized in
Massachusetts.
On February 28, 1978, an FBI agent submitted an ap-
plication for a search warrant to Magistrate Cohen with a
supporting affidavit. The affidavit detailed at length the ob-
servations of the agent and his colleagues of a series of deliveries
by truck of suspected pornography from the plaintiffs’ various
places of business in Rhode Island to retail pornography outlets
in the lower Washington Street area of Boston known as “‘the
Combat Zone.”’ Cartons unloaded at one such truck delivery
were observed to contain the magazines Turkish Delight, Sex
Foto Fiction No. 1 and Sex Foto Fiction No. 2. One of the
agents purchased one copy of each of these magazines, and these
copies were submitted to the magistrate with the application.
The affidavit contained information that a blue panel truck of a
certain registration had left plaintiffs’ premises in Rhode Island
that morning and was expected to make a delivery of suspected
pornography immediately.
On the basis of this submission the magistrate entered an
order in which he found the three magazines to be obscene and
commanded the agents to search the blue panel truck “in order
A-11
APPENDIX B—Memorandum and Order of the
United States District Court for the
District of Massachusetts
to determine whether or not there exists therein obscene
materials of the same tenor as Turkish Delight, Sex Photo
Fiction No. | and Sex Photo Fiction No. 2.’’ He also issued a
search warrant.
Thereafter the agents seized the truck, arrested the driver and
drove the truck to the FBI garage. There is a dispute as to
whether it was necessary to move the truck to avoid impeding
traffic and causing a public commotion, as reflected in the affi-
davits of the agent and the driver of the truck. I will assume that
it would have been possible to search the truck on the street. In
any case, the truck was searched, but nothing was seized.
Although seizure was authorized by the terms of the warrant,
the agents considered themselves bound by the terms of the
contemporaneous order quoted above.
After completing this search, the agent applied for a second
warrant to search for and seize nine additional named
magazines and five named films, which in his affidavit he
claimed to have seen in the truck. The magistrate then boarded
the truck and personally viewed the magazines and parts of the
films. The magistrate entered an order in which he made a find-
ing that the items were obscene and issued a warrant for the
search of the truck and the seizure of the nine named magazines,
five named films, and related business records. Three copies of
each magazine were seized and one copy of each film, along
with business records related to deliveries to retailers in Boston.
The truck was released to the driver after having been held
for several hours, but was not in fact removed for several days.
The plaintiffs were notified of the seizure immediately there-
after in accordance with the magistrate’s order. The complaint
against the driver was eventually withdrawn.
A-12
APPENDIX B—Memorandum and Order of the
United States District Court for the
District of Massachusetts
The resolution of this motion turns on the propriety of the
issuance and execution of the first warrant.
The facts set forth in the agent’s first affidavit were sufficient
to authorize a warrant for the search and seizure of suspected
contraband other than magazines and films presumptively
entitled to the protection of the First Amendment. United States
v. Cortellesso, F.2d (Ist Cir., June 29, 1979). The
search cannot be validated as incidental to the valid arrest of the
driver of the van for two reasons: (1) the validity of the arrest is
subject to the same First Amendment considerations as the
search of the van; and (2) it is clear from the affidavits that the
agents had determined to search before the arrest was made, or,
in short, that the arrest was incidental to the search rather than
the other way around.
There are special rules governing the seizure of magazines,
books and films resulting from the interaction of the First and
Fourth Amendments:
1. Before such material is seized as obscene, a neutral
detached magistrate must view the material, “focus
searchingly on the question of obscenity’’ and determine
that there is probable cause for the issuance of a warrant.
Marcus v. Search Warrant, 367 U.S. 717, 731-733
(1961).
to
An adversary proceeding is required before a final
restraint on the distribution of such material but not
before the seizure of sample items to preserve them as
evidence, provided a prompt adversary hearing is avail-
able at the request of any interested party. Heller v. New
York, 413 U.S. 483, 493 (1973).
A-13
APPENDIX B—Memorandum and Order of the
United States District Court for the
District of Massachusetts
3. The magistrate may not put himself at the head of a
search party and compress the various procedural steps,
filling in the search warrant with a description of the
items seized after the fact. Lo-Ji Sales, Inc. v. State of
New York, 47 L.W. 4670 (United States Supreme Court,
June 11, 1979).
When a search and seizure of obscene material is proposed to
be conducted at a retail outlet or places where the public is
invited, the requirement that the material be first submitted to a
neutral magistrate may be satisfied by purchasing the offending
book or magazine or viewing a film. Enforcement officers who
seek evidence against wholesalers and distributors have a more
difficult problem: How do they get the material before the
magistrate so that he can make the determination prerequisite
to the issuance of a search warrant?
In my opinion, the two-stage procedure employed in this case
is a reasonable response to the problem, and is a reasonable
variant on the procedure suggested by the Ninth Circuit in
United States v. Sherwin, 572 F.2d 196, 200 (9th Cir. 1977).
The first order of the magistrate called for a search only. The
truck was detained for only so long as was reasonably necessary
to provide an opportunity for a search and review of the suspect
material by the magistrate.
Plaintiffs in their brief and argument focus on the im-
propriety of issuance of the first order and warrant. I have no
doubt that there was probable cause apparent in the agent's
affidavit for the issuance of the warrant in Fourth Amendment
terms. The problems are First Amendment ones.
The affidavit contained a sufficient basis for a finding of
probable cause that the plaintiffs were engaged in a continuing
A-14
APPENDIX B—Memorandum and Order of the
United States District Court for the
District of Massachusetts
course of conduct of transporting to the Combat Zone material
characterized by the agent as obscene, and that the blue panel
truck was employed for that purpose. The magistrate not only
had the agent’s explicit description (which would not have been
conclusive), but samples of what he meant by obscene.
Plaintiffs next assert that the direction to search for material
‘of the same tenor” as Turkish Delight, and Sex Foto Fiction
No. 1 and Sex Foto Fiction No. 2 was not sufficiently specific
and left too great a measure of discretion to the agent. To
resolve this issue I called for and inspected the magazines in
question, over the plaintiffs’ objection. The ‘‘tenor’’ of these
publications is unmistakable. They are clearly what the Second
Circuit has aptly described as “fungible smut.’ United States v.
Cangiano, 491 F.2d 906, 913 (2d Cir. 1974).
The asserted danger to First Amendment rights is that police
will be unable to distinguish between obscenity and protected
material; specifically, that the agents here would be unable to
distinguish between Turkish Delight, and say, a_photo-
illustrated edition of Lady Chatterley’s Lover or The World
According To Garp, in which explicit sexual descriptions are
integral aspects of a literary exposition. Even conceding that the
track record of the police as literary critics is poor, I am satisfied
that the practical danger is minimal. Even if it existed, it would
only last until the magistrate’s review, which in this case was
prompt. The restraint on the free flow of ideas, if any there
were, was scarcely greater than might have resulted from a
blown tire on the blue panel truck. ,
That the search of the truck was accomplished at the FBI
garage rather than under public gaze on Washington Street does
not raise a constitutional question. Cf. State of Arkansas v.
Sanders, 47 L.W. 4783, 4786 (United States Supreme Court,
June 20, 1979); Chambers v. Maroney, 399 U.S. 42 (1970).
A-15
APPENDIX B—Memorandum and Order of the
United States District Court for the
District of Massachusetts
Accordingly, the motion to return seized property is
DENIED with respect to the Rhode Island seizure because the
material was not seized in this district, and is DENIED with
respect to property seized in this district because the seizure
violated no constitutional rights of the plaintiffs.
/s/ WALTER JAY SKINNER
United States District Judge
A-16
APPENDIX C—Constitutional Provisions and
Statutes Involved
Amendment I
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
Amendment IV
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and _ par-
ticularly describing the place to be searched, and the persons or
things to be seized.
STATUTES INVOLVED
Rule 41 of the Federal Rules of Criminal
Procedure
Search and Seizure
* * *
(c) Issuance and Contents
(1) Warrant upon Affidavit. A warrant other than a warrant
upon oral testimony under paragraph (2) of this subdivision
shall issue only on an affidavit or affidavits sworn to before the
federal magistrate or state judge and establishing the grounds
for issuing the warrant. If the federal magistrate or state judge is
satisfied that grounds for the application exist or that there is
probable cause to believe that they exist, he shall issue a warrant
identifving the property and naming or describing the person or
place to be searched. The finding of probable cause may be
based upon hearsay evidence in whole or in part. Before ruling
A-17
APPENDIX C—Constitutional Provisions and
Statutes Involved
on a request for a warrant the federal magistrate or state judge
may require the affiant to appear personally and may examine
under oath the affiant and any witnesses he may produce,
provided that such proceeding shall be taken down by a court
reporter or recording equipment and made part of the affidavit.
The warrant shall be directed to a civil officer of the United
States authorized to enforce or assist in enforcing any law
thereof or to a person so authorized by the President of the
United States. It shall command the officer to search, within a
specified period of time not to exceed 10 days, the person or
place named for the property specified. The warrant shall be
served in the daytime, unless the issuing authority, by ap-
propriate provision in the warrant, and for reasonable cause
shown, authorizes its execution at times other than daytime. It
shall designate a federal magistrate to whom it shall be re-
turned.
* * *
(e) Motion for Return of Property. A person aggrieved by an
unlawful search and seizure may move the district court for the
district in which the property was seized for the return of the
property on the ground that he is entitled to lawful possession of
the property which was illegally seized. The judge shall receive
evidence on any issue of fact necessary to the decision of the
motion. If the motion is granted the property shall be restored
and it shall not be admissible in evidence at any hearing or trial.
If a motion for return of property is made or comes on for
hearing in the district of trial after an indictment or information
is filed, it shali be treated also as a motion to suppress under
Rule 12.
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.