United States Supreme Court
NEW YORK, Petitioner
v.
P.J. VIDEO, INC., dba Network Video, et al.
Argued March 4, 1986.
No. 85-363
Decided April 22, 1986.
Respondents
were charged with violating New York obscenity statute and moved to
suppress seized films. The Village of Depew Justice Court, Henry S.
Wick, J., granted the motion and dismissed the charges. The Erie
County Court and New York Court of Appeals, 65 N.Y.2d 566, 493 N.Y.S.2d 988, 483 N.E.2d 1120,
affirmed. Certiorari was granted. The Supreme Court, Justice
Rehnquist, held that: (1) application for warrant authorizing seizure
of materials presumptively protected by First Amendment should be
evaluated under same probable cause standard used to review warrant
applications generally, and (2) affidavits describing films seized
adequately established probable cause with respect to second of three
elements of obscenity under New York statute.
Judgment of New York Court of Appeals reversed and cause remanded.
Justice Marshall filed a dissenting opinion in which Justices Brennan and Stevens joined.
868
Syllabus FN*
FN*
The syllabus constitutes no part of the opinion of the Court but has
been prepared by the Reporter of Decisions for the convenience of the
reader. See
United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
Following
an investigation by the Erie County, N.Y., District Attorney's Office,
an investigator viewed videocassette movies that had been rented from
respondents' store by a member of the County Sheriff's Department. The
investigator then executed affidavits summarizing the theme of, and
conduct depicted in, each movie. These affidavits were attached to an
application for a warrant to search respondents' store, and a New York
Supreme Court Justice issued the warrant authorizing the search and the
seizure of the movies. The warrant was executed, and the movies were
seized. Respondents were charged in a New York Justice Court with
violating the New York obscenity statute and moved to suppress the
seized movies on the ground that the warrant was issued without probable
cause to believe that the movies were obscene. The Justice Court
granted the motion and dismissed the charges, and both the County Court
and the New York Court of Appeals affirmed. The Court of Appeals held
that there was a “higher” probable-cause standard for issuing warrants
to seize such things as books and movies than for warrants to seize such
things as weapons or drugs, and that under this “higher” standard there
was insufficient information in the affidavits to permit the issuing
justice to believe that the movies in question were obscene under New
York law.
Held: No “higher” probable-cause standard was required by the
First Amendment for issuance of the warrant in question. An
application for a warrant authorizing the seizure of materials
presumptively protected by the First Amendment should be evaluated under
the same probable-cause standard used to review warrant applications
generally, namely, that there is a “fair probability” that evidence of a
crime will be found in the particular place to be searched.
Evaluating the supporting affidavits here under this standard, the
warrant was supported by probable cause to believe that the movies were
obscene under New York law, and they should not have been suppressed.
Pp. 1614-1616.
65 N.Y.2d 566, 493 N.Y.S.2d 988, 483 N.E.2d 1120, reversed and remanded.
REHNQUIST,
J., delivered the opinion of the Court, in which BURGER, C.J., and
WHITE, BLACKMUN, POWELL and O'CONNOR, JJ., joined. *869
MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined,
post, p. ---.
John J. DeFranks argued the cause for petitioner. With him on the briefs was
Richard J. Arcara.
Paul John Cambria, Jr., argued the cause and filed a brief for respondents.*
*
Charles B. Ruttenberg and
James P. Mercurio filed a brief for the Video Software Dealers Association as
amicus curiae urging affirmance.
Justice REHNQUIST delivered the opinion of the Court.
This
case concerns the proper standard for issuance of a warrant authorizing
the seizure of materials presumptively protected by the First
Amendment. Respondents P.J. Video, Inc., and James Erhardt were
charged in the village of Depew, New York, Justice Court with six counts
of obscenity in the third degree under § 235.05(1) of the New York Penal Law.FN1
Respondents moved to suppress five videocassette movies that had been
seized from respondents' store, and that formed the basis for the
obscenity charges *870
against
respondents, on the ground that the warrant authorizing the seizure was
issued without probable cause to believe that the movies were obscene.
The Justice Court granted the motion and dismissed the informations
under which respondents were charged, and both the County Court of Erie
County and the New York Court of Appeals affirmed. 65 N.Y.2d 566, 493 N.Y.S.2d 988, 483 N.E.2d 1120 (1985).
We granted certiorari to resolve the conflict between the decision of
the New York Court of Appeals in the instant case and the decisions in
Sequoia Books, Inc. v. McDonald, 725 F.2d 1091 (CA7 1984), and
United States v. Pryba, 163 U.S.App.D.C. 389, 502 F.2d 391
(1974), cert. denied, 419 U.S. 1127, 95 S.Ct. 815, 42 L.Ed.2d 828
(1975). 474 U.S. 918, 106 S.Ct. 244, 88 L.Ed.2d 253 (1985). We now
reverse the judgment of the Court of Appeals.
FN1. Section 235.05(1) (McKinney Supp.1986) provides:
“A
person is guilty of obscenity in the third degree when, knowing its
content and character, he:“1. Promotes, or possesses with intent to
promote, any obscene material....”
“Obscenity in the third degree is a class A misdemeanor.”The statutory definition of “obscenity,” which is derived from
Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), appears at § 235.00(1) (McKinney 1980):
“...
Any material or performance is ‘obscene’ if (a) the average person,
applying contemporary community standards, would find that considered as
a whole, its predominant appeal is to the prurient interest in sex, and
(b) it depicts or describes in a patently offensive manner, actual or
simulated: sexual intercourse, sodomy, sexual bestiality, masturbation,
sadism, masochism, excretion or lewd exhibition of the genitals, and
(c) considered as a whole, it lacks serious literary, artistic,
political, and scientific value. Predominant appeal shall be judged
with reference to ordinary adults unless it appears from the character
of the material or the circumstances of its dissemination to be designed
for children or other specially susceptible audiences.”
The
obscenity charges against respondents arose out of an investigation by
the Erie County District Attorney's Office. Investigator David J.
Groblewski was assigned to review 10 videocassette movies that had been
rented from respondents' store by a member of the Erie County Sheriff's
Department. FN2
Groblewski viewed the movies in their entirety, and executed
affidavits summarizing the theme of, and conduct depicted in, each film.
The affidavits were attached to an application filed by the village
of Depew Police Department for a warrant to search respondents' store.
FN2.
The 10 movies were entitled “California Valley Girls,” “Taboo II,”
“Taboo,” “All American Girls,” “Debbie Does Dallas,” “Body Magic,” “Deep
Throat,” “Every Which Way She Can,” “Filthy Rich,” and “Little Girls
Blue.”
A justice
of the New York Supreme Court issued the warrant, authorizing the
search of the store and the seizure of the movies. The warrant was
executed the next day and, according to a sworn, itemized inventory
statement, the police seized 1 or 2 copies of each of the 10 movies. A
total of 13 videocassettes were seized. The justice who had issued
the warrant ordered that the videocassettes be temporarily *871
retained by the police as evidence for trial. See N.Y.Crim.Proc.Law §§ 690.05-690.55 (McKinney 1984).
Respondents
ultimately were charged in the village of Depew Justice Court with
violating the New York obscenity laws with respect to only 5 of the 10
movies. The affidavits describing these five movies appear in full in
the Appendix to this opinion.
FN3
Respondents moved for suppression of the seized videocassettes,
alleging that the warrant authorizing their seizure was not supported by
probable cause because the issuing justice had not personally viewed
the movies. The Justice Court granted the motion and dismissed the
informations under which respondents were charged, and on the State's
appeal the County Court of Erie County affirmed.
FN3.
The five movies that formed the basis for the obscenity charges
against respondents were “California Valley Girls,” “Taboo II,” “Taboo,”
“All American Girls,” and “Debbie Does Dallas.”
The
New York Court of Appeals likewise affirmed, although on a different
theory than that of the Justice Court. According to the Court of
Appeals, “there is a higher standard for evaluation of a warrant
application seeking to seize such things as books and films, as
distinguished from one seeking to seize weapons or drugs, for example (
Roaden v. Kentucky, [413 U.S. 496], 504 [93 S.Ct. 2796, 2801, 37 L.Ed.2d 757] [1973];
Marcus v. Search Warrant, 367 U.S. 717, 730-731 [81 S.Ct. 1708,
1715-16, 6 L.Ed.2d 1127] [1961] ). In applying the [Fourth] Amendment
to such items, the court must act with ‘scrupulous exactitude’ (
Stanford v. Texas, 379 U.S. 476, 481-485 [85 S.Ct. 506, 509-12, 13 L.Ed.2d 431] [1965];
see also,
Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 [1985] ).” 65 N.Y.2d, at 569-570, 493 N.Y.S.2d, 991, 483 N.E.2d, at 1123
(footnote omitted). Using this “higher” probable-cause standard to
review the affidavits submitted in support of the warrant application,
the Court of Appeals stated:
“Many
of the scenes described contain explicit sexual activity, patently
offensive by any constitutional standard, but the allegations of the
affidavits do not indicate whether they constitute all, most or a few of
the scenes *872
presented
in the films.... The descriptions of the action are not supplemented
by references to the narrative or dialogue of the films and the affiant
attempted to describe the ‘character’ or ‘theme’ of the movies by
settings having nothing to do with the plot.... He made no attempt to
reveal the story line (or lack of one) of the films or demonstrate that
their ‘predominant appeal’ was to prurient interest. In short, none of
the affidavits permit an inference that the scenes described are more
than a catalog of offensive parts of the whole.”
Id., at 570-571, 493 N.Y.S.2d, at 992, 483 N.E.2d, at 1124.
The
Court of Appeals concluded that the affidavits did not contain
sufficient information to permit the issuing justice, “applying
contemporary community standards, to judge the films as a whole and
determine that they are within the statutory definitions of obscenity
and thus are not entitled to constitutional protection.”
Id., at 572, 493 N.Y.S.2d, at 992, 483 N.E.2d, at 1124
(footnote omitted). One judge dissented, arguing that the affidavits
contained enough information for the issuing justice “to reasonably
believe that the video movies were obscene as legislatively defined.”
Id., at 573, 493 N.Y.S.2d, at 993, 483 N.E.2d, at 1125 (Jasen, J., dissenting).FN4
FN4.
Respondents argue that the decision of the New York Court of Appeals
rested on adequate and independent state grounds, namely, provisions of
the New York Constitution and various state-court decisions, and that we
therefore lack jurisdiction to review that decision. We disagree.
As we explained in
Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985):
“[W]e
will not assume that a state-court decision rests on adequate and
independent state grounds when the ‘state court decision fairly appears
to rest primarily on federal law, or to be interwoven with the federal
law, and when the adequacy and independence of any possible state law
ground is not clear from the face of the opinion.’ ”
Id., at 327, 105 S.Ct., at 2638, quoting
Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct. 3469, 3475-76, 77 L.Ed.2d 1201 (1983).
Here,
the New York Court of Appeals cited the New York Constitution only
once, near the beginning of its opinion, and in the same parenthetical
also cited the Fourth Amendment to the United States Constitution.
Moreover, the Court of Appeals repeatedly referred to the “First
Amendment” and “Fourth Amendment” during its discussion of the merits of
the case, strongly indicating that it believed that its decision was
governed by federal law. Finally, although the Court of Appeals cited
several state-court decisions, the only citations appended to the
crucial language quoted in the text were to the federal decisions in
Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973),
Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961),
Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965), and
Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985).
We conclude, in the absence of a “plain statement” to the contrary,
that the decision of the Court of Appeals was premised on federal, not
state, law.
*873
We
have long recognized that the seizure of films or books on the basis of
their content implicates First Amendment concerns not raised by other
kinds of seizures. For this reason, we have required that certain
special conditions be met before such seizures may be carried out. In
Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973),
for example, we held that the police may not rely on the “exigency”
exception to the Fourth Amendment's warrant requirement in conducting a
seizure of allegedly obscene materials, under circumstances where such a
seizure would effectively constitute a “prior restraint.” In
A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), and
Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961),
we had gone a step farther, ruling that the large-scale seizure of
books or films constituting a “prior restraint” must be preceded by an
adversary hearing on the question of obscenity. In
Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973),
we emphasized that, even where a seizure of allegedly obscene materials
would not constitute a “prior restraint,” but instead would merely
preserve evidence for trial, the seizure must be made pursuant to a
warrant and there must be an opportunity for a prompt postseizure
judicial determination of obscenity. And in
Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968),
we held that a warrant authorizing the seizure of materials
presumptively protected by the First Amendment may not issue based
solely on the conclusory allegations of a police officer that the
sought-after materials are obscene, but instead must be supported by
affidavits setting forth specific facts in order *874
that the issuing magistrate may “focus searchingly on the question of obscenity.”
Marcus, supra, at 732, 81 S.Ct., at 1716; see also
Stanford v. Texas, 379 U.S. 476, 486, 85 S.Ct. 506, 512, 13 L.Ed.2d 431 (1965).FN5
FN5.
Contrary to the position apparently taken by the Justice Court in the
instant case, we have never held that a magistrate must personally view
allegedly obscene films prior to issuing a warrant authorizing their
seizure. See
Lee Art Theatre, Inc. v. Virginia, 392 U.S., at 637, 88 S.Ct., at 2104.
On the contrary, we think that a reasonably specific affidavit
describing the content of a film generally provides an adequate basis
for the magistrate to determine whether there is probable cause to
believe that the film is obscene, and whether a warrant authorizing the
seizure of the film should issue.
The
New York Court of Appeals construed our prior decisions in this area as
standing for the additional proposition that an application for a
warrant authorizing the seizure of books or films must be evaluated
under a “higher” standard of probable cause than that used in other
areas of Fourth Amendment law. But we have never held or said that
such a “higher” standard is required by the First Amendment. In
Heller, we said:
“[S]eizing
films to destroy them or to block their distribution or exhibition is a
very different matter from seizing a single copy of a film for the
bona fide purpose of preserving it as evidence in a criminal
proceeding, particularly where, as here, there is no showing or pretrial
claim that the seizure of the copy prevented continuing exhibition of
the film. If such a seizure is pursuant to a warrant,
issued after a determination of probable cause by a neutral magistrate,
and, following the seizure, a prompt judicial determination of the
obscenity issue in an adversary proceeding is available at the request
of any interested party, the seizure is constitutionally permissible....
“
The necessity for a prior judicial determination of probable cause will protect
against gross abuses....” 413 U.S., at 492-493, 93 S.Ct., at 2795 (emphasis added; footnotes omitted).
*875
We think that this passage from
Heller, emphasizing the requirement that the magistrate determine
probable cause as a means of safeguarding First Amendment interests,
and eschewing any suggestion that the standard of probable cause in the
First Amendment area is different than in other contexts, suggests that
we saw no need for the latter requirement. In our view, the
longstanding special protections described above, and enunciated in
cases such as
Roaden, A Quantity of Books, Marcus, Heller, and
Lee Art Theatre, are adequate to ensure that First Amendment
interests will not be impaired by the issuance and execution of warrants
authorizing the seizure of books or films. We think, and accordingly
hold, that an application for a warrant authorizing the seizure of
materials presumptively protected by the First Amendment should be
evaluated under the same standard of probable cause used to review
warrant applications generally.FN6
FN6.
Respondents contend that the seizure in the instant case was not
limited to only one copy of each film, but instead extended to all
copies of the films that the police were able to find during their
search of respondents' store. According to respondents, the seizure
had the effect of severely restricting public access to the films, and
thereby constituted a “prior restraint.” Respondents therefore argue
that this case is properly governed not by
Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), but by
Roaden v. Kentucky, supra, where this Court stated that the
seizure of an allegedly obscene film, under circumstances where the
seizure “brought to an abrupt halt an orderly and presumptively
legitimate ... exhibition” of the film, “calls for a higher hurdle in
the evaluation of reasonableness.”
Id., at 504, 93 S.Ct., at 2801.We reject this contention. Our reference in
Roaden to a “higher hurdle ... of reasonableness” was not
intended to establish a “higher” standard of probable cause for the
issuance of a warrant to seize books or films, but instead related to
the more basic requirement, imposed by that decision, that the police
not rely on the “exigency” exception to the Fourth Amendment warrant
requirement, but instead obtain a warrant from a magistrate who has “
‘focus[ed] searchingly on the question of obscenity.’ ”
Id., at 506, 93 S.Ct., at 2802, quoting
Marcus v. Search Warrant, supra, 367 U.S., at 732, 81 S.Ct., at 1716.
We
also note that the burden is on the defendant to make a pretrial
showing of a “substantial restraint” if he wishes to escape the rule of
Heller, supra, that a mere seizure to preserve evidence does not
impose on the State a duty to conduct an adversary hearing of the sort
described in
Marcus, supra. Respondents made no such pretrial showing in this case.
*876
That standard was recently set forth by this Court in
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983):
“
‘[T]he term “probable cause,” ... means less than evidence which would
justify condemnation.... It imports a seizure made under circumstances
which warrant suspicion.’ [
Locke v. United States, 7 Cranch 339, 348 [11 U.S. 339, 348, 3
L.Ed.2d 364] (1813).]... Finely tuned standards such as proof beyond a
reasonable doubt or by a preponderance of the evidence, useful in
formal trials, have no place in the magistrate's decision.
....
“The
task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set forth in
the affidavit before him, ... there is a fair probability that
contraband or evidence of a crime will be found in a particular place.
And the duty of a reviewing court is simply to ensure that the
magistrate had a ‘substantial basis for ... conclud[ing,]’ [
Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960),] that probable cause existed.”
Id., 462 U.S., at 235, 238-239, 103 S.Ct., at 2330, 2332-33.
Applying the
Gates standard to the affidavits in the instant case, we think it
clear beyond peradventure that the warrant was supported by probable
cause to believe that the five films at issue were obscene under New
York law. Respondents concede that the affidavits describing the five
films adequately
established probable cause with respect to the second of the three
elements of obscenity under the statute, namely, that the movies
depicted “in a patently offensive manner” the various kinds of sexual
conduct specified in the statute. See N.Y.Penal Law § 235.00(1)(b) (McKinney 1980).
Our review of the affidavits convinces us that the issuing justice
also was given more than enough information to conclude that there was a
“fair probability” that the movies satisfied *877
the first and third elements of the statutory definition, namely, that
the “predominant appeal [of the movies] is to the prurient interest in
sex,” and that the movies “lac[k] serious literary, artistic,
political, and scientific value.” See N.Y.Penal Law §§ 235.00(1)(a),
(c) (McKinney 1980). As Judge Jasen of the Court of Appeals noted in
his dissent in the present case:
“Each of the affidavits describing the films clearly state at the outset that ‘the
content and character of the above mentioned video movie is as
follows.’ Inasmuch as the magistrate was reviewing affidavits
describing movies which were advertised by defendants as ‘adult
cassette movies,’ it was reasonable for him to believe that the
affidavits faithfully and accurately described the substance of each
movie as a whole. Each affidavit describes the numerous acts of deviate
sexual intercourse and the objectification of women occurring in each
film which the majority concede to be offensive. Each film is of
relatively short duration. Manifestly, the acts described in each movie
consume a substantial time span. Thus, the magistrate may reasonably
have concluded that the described, successive acts of deviate sexual
intercourse pervaded each film. When the title of each movie is
considered together with its plot and setting, its general theme and
serious value, if any, may reasonably be discerned. The films were
described in each of the five nonconclusory affidavits in such a
fashion as to permit the magistrate to focus searchingly on the issue
of obscenity. Under these circumstances, there was a reasonable basis
for the magistrate to authorize the seizure of the films in question.”
65 N.Y.2d, at 580, 493 N.Y.S.2d, at 998, 483 N.E.2d, at 1130 (emphasis
in original).
We believe that the analysis and conclusion expressed by the dissenting judge are completely consistent with our statement in
Gates that “probable cause requires only a probability*878
or substantial chance of criminal activity, not an actual showing of
such activity.” 462 U.S., at 244, n. 13, 103 S.Ct., at 2335, n. 13. We
hold that, evaluated under the correct standard of probable cause, the
warrant was properly issued and the videocassettes of the five movies
should not have been suppressed. The judgment of the New York Court of
Appeals is accordingly reversed, and the cause remanded to that court
for further proceedings not inconsistent with this opinion.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
AFFIDAVIT
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I
am presently a Confidential Criminal Investigator assigned to the Erie
County District Attorney's Office and prior to this, a member of the New
York State Police for approximately 25 years.
On
September 26th, 1983 I viewed the video tape movie “CALIFORNIA VALLEY
GIRLS,” which was rented on September 20th, 1983, from Network Video,
5868 Transit Road, Depew, New York. This movie was rented by Detective
Sergeant Vincent Costanza, a member of the Erie County Sheriff's
Department. This movie was viewed in my office starting at 12:00 Noon
and lasted until 1:33 P.M.
The content and character of the above mentioned video movie is as follows: Six white females, approximately 18 to 25 **years of age, are unemployed and attempt to make a living by *879
becoming
prostitutes. The first scene is a bedroom scene where two females are
involved in love making, fondling and cunnilingus. The second scene
depicts a white male and a white female having intercourse in the back
of a van. The third scene is a house scene where six girls, all white
females are introduced to the art of love making. One male,
approximately 35 years of age, is teaching the girls the art of fellatio
with each one of them performing this act on him. The next scene is a
bedroom scene in a home where a husband and wife, a white male and a
white female, alone with a girl, a white female, perform various sexual
acts which include intercourse, fellatio, anal intercourse and
cunnilingus. The movie ends with some lesbianism where the wife
performs cunnilingus on the girl while she performs fellatio on the
husband and they engage in intercourse and anal intercourse.
[Signature]
David J. Groblewski
Confidential Criminal
Investigator
Subscribed and sworn to
before me this [21] day
of November, 1983.
[Signature]
Notary Public
AFFIDAVIT
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I am presently a Confidential Criminal Investigator assigned to the Erie County District Attorney's Office and *880
prior to this, a member of the New York State Police for approximately 25 years.
On
September 23rd, 1983, I viewed the video tape movie “TABOO II,” which
was rented on September 20th, 1983, from Network Video, 5868 Transit
Road, Depew, New York. This movie was rented by Detective Sergeant
Vincent Costanza, a member of the Erie County Sheriff's Department.
This movie was viewed in my office starting at 9:00 A.M. and with
several interruptions lasted until 12:12 P.M.
The
content and character of the above mentioned video movie: The theme of
the movie is a middle-class neighborhood where a home is the place
where all the sexual acts are performed. The movie starts with a
brother and sister, a white male and white female, fondling each other.
The second scene is another house scene where a white male and white
female are giving a rubdown to a white female. The sexual acts that
follow include cunnilingus and fellatio. There is also intercourse and
the scene closes with the male placing his penis between the girl's
breasts and ejaculating into and over her mouth. In another scene
there is some incestuous type activity between the brother and the
sister where again fellatio and intercourse are performed. At one
point during the movie the mother enters the bedroom and observes the
two performing the sexual acts and becomes depressed about the
situation. In a later scene the son and his mother are on a couch
where they become involved in sexual acts of intercourse and fellatio.
The movie closes with the mother and father asleep in their bedroom at
which time the daughter enters and sleeps next to her father, where they
perform incestuous acts of intercourse, and she performs fellatio on
her father.
[Signature]
Subscribed and sworn to before me
this [21] day of November, 1983
[Signature]
Notary Public
*881
AFFIDAVIT
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I
am presently a Confidential Criminal Investigator assigned to the Erie
County District Attorney's Office and prior to this, a member of the New
York State Police for approximately 25 years.
On
September 29th, 1983, I viewed the video tape movie “TABOO,” which was
rented on September 27th, 1983 from Network Video, 5868 Transit Road,
Depew, New York. This movie was rented by Detective Sergeant Vincent
Costanza, a member of the Erie County Sheriff's Department. This movie
was viewed in my office starting at 11:00 A.M. and lasted until 11:55
A.M. and watched again commencing at 1:42 P.M. and lasting until 2:23
P.M.
The content and character
of the above mentioned video movie is as follows: The first scene is a
bedroom scene where two white females and one white male perform various
acts of fellatio, cunnilingus and intercourse. The second scene is a
house party scene where many white males and white females are involved
in various acts of intercourse, fellatio and cunnilingus. There is
also a scene where females perform acts of cunnilingus on each other.
The movie portrays at one point a bedroom scene with a white male, the
son, laying in bed naked, at which time his mother, a white female
enters the room. She makes love to him and incestuous acts of
intercourse, placing of the penis between her breasts, ejaculation and
cunnilingus are performed.
*882
[Signature]
David J. Groblewski
Confidential Criminal
Investigator
Subscribed and sworn to
before me this [21] day
of November, 1983
[Signature]
Notary Public
AFFIDAVIT
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I
am presently a Confidential Criminal Investigator assigned to the Erie
County District Attorney's Office and prior to this, a member of the New
York State Police for approximately 25 years.
On
September 28th, 1983, Detective Sergeant Vincent Costanza, a member of
the Erie County Sheriff's Department and I viewed the video tape movie
“ALL AMERICAN GIRLS,” which was rented on September 27th, 1983 from
Network Video, 5868 Transit Road, Depew, New York. This movie was
viewed in my office starting at 11:35 A.M., and lasted until 1:00 P.M.
The
content and character of the above mentioned video movie is as follows:
The theme of the movie is a home of one of the six girls, all white
females who had previously attended high school and were meeting for a
reunion. The first scene is two girls in a room performing acts of
lesbianism, namely cunnilingus on each other. They are met by a white
male and they perform acts of fellatio on him, have intercourse and all
leave the room. Throughout the movie the girls reminisce about their
high school days with each one depicting her sexual*883
acts with her male partner. The sexual acts which followed included intercourse, fellatio and cunnilingus.
[Signature]
David J. Groblewski
Confidential Criminal
Investigator
**1619
Subscribed and sworn to
before me this [21] day
of November, 1983
[Signature]
Notary Public
AFFIDAVIT
DAVID J. GROBLEWSKI, being duly sworn, deposes and says:
I
am presently a Confidential Criminal Investigator assigned to the Erie
County District Attorney's Office and prior to this, a member of the New
York State Police for approximately 25 years.
On
October 3rd, 1983, Detective Sergeant Vincent Costanza, a member of the
Erie County Sheriff's Department and I viewed the video tape movie
“DEBBIE DOES DALLAS,” which was rented on September 30th, 1983, by
Vincent Costanza from Network Video, 5868 Transit Road, Depew, New York.
This movie was viewed in my office starting at 2:50 P.M. and lasted
until 4:23 P.M.
The content and
character of the above mentioned video movie is as follows: The theme
of the movie is a girl moving out west for a change of atmosphere. The
first scene is a jail scene where a white female is in jail after she
had been put there by the so-called Sheriff, a white male, and she
performs fellatio on him. The two then perform intercourse, at which *884
time
he removes his pants and ejaculates over her buttocks. The second
scene is the ranch, a so-called house of ill repute, a bedroom scene in
which a white male and a white female are involved in various sexual
acts including fellatio, cunnilingus and intercourse. At the end of
the scene the male ejaculates in and over the female's mouth. The
third scene, a bathroom scene, depicts some lesbianism involving three
girls. They participate in love making, foreplay and performing
cunnilingus on each other. Throughout, the movie depicts some
lesbianism along with sexual acts of intercourse, fellatio and
cunnilingus.
[Signature]
David J. Groblewski
Confidential Criminal
Investigator
Subscribed and sworn to before
me this [21] day of November, 1983
[Signature]
Notary Public
Justice MARSHALL, with whom, Justice BRENNAN and Justice STEVENS join, dissenting.
Under
New York law, a film depicting specified sexual acts in a patently
offensive manner is obscene if “the average person, applying
contemporary community standards, would find that considered as a whole,
its predominant appeal is to the prurient interest in sex,” and if
“considered as a whole, it lacks serious literary, artistic, political,
and scientific value.” N.Y.Penal Law §§ 235.00(1)(a), (c) (McKinney 1980).
The question before this Court is whether three New York state courts
erred in holding that the affidavits at issue in this case failed to
establish probable cause that those standards were met.FN1 The determination of what the standards of *885
§ 235.00(1)
mean and how they should be applied in individual cases, of course, is
in the first instance a matter of state law and the rightful province of
the state courts. While the majority describes it as “clear **1620
beyond peradventure,”
ante, at 8, that the affidavits set out the requisite probable
cause, I do not find that result “clear” at all, and I would not
overturn the state courts' contrary judgment.
FN1.
The New York Court of Appeals held that the third branch of the
statute, providing that a film, to be obscene, must depict specified
sexual acts “in a patently offensive manner, actual or simulated,” §
235.00(1)(b), was satisfied by the descriptions in the affidavits in
this case. 65 N.Y.2d 566, 570, n. 1, 493 N.Y.S.2d 988, 991, n. 1, 483
N.E.2d 1120, 1123, n. 1 (1985).
I
The
affidavits at issue in this case were first found inadequate at a
suppression hearing in the Depew Justice Court. The court, per Justice
Wick, noted that the issuing Magistrate had apparently not himself
viewed the films, and that the retired state trooper who compiled the
affidavits had “obviously paid no attention to contemporary community
standards” and “made no further determination if the presentations had
any literary, artistic, political or scientific value.” App. to Pet.
for Cert. A-37. Without stating clearly the exact basis of its
decision, the court noted that “[t]he material contained [in the films]
may be of the type proscribed by Section 235.05 of the Penal Law
but equally, it may be ... ‘coarse, puerile, offensive and distasteful
(and still not) obscene under the law or proscribable.’ ”
Id., at A-38, quoting
People v. Stabile, 58 Misc.2d 905, 296 N.Y.S.2d 815 (N.Y.C.Crim.Ct.1969). The court granted respondents' suppression motion.
The
Erie County Court affirmed. Justice LaMendola noted the absence of a
transcript of the proceedings, if any, before the issuing Magistrate,
and declared it within the lower court's discretion to hold that “under
New York law, the issuing magistrate had failed to make an adequate
finding of probable cause ... because he relied solely on the affidavits
of the police officers without any further investigation or viewing of
the materials to be confiscated.” App. to Pet. *886
for Cert. A-33. Justice LaMendola's reference to “further investigation
or viewing” makes it plain that she did not regard the issuing
Magistrate's viewing of the film as an invariable requisite to issuance
of a warrant. The affidavits in this case, however, unsupported by
further investigation, provided insufficient basis for a warrant
authorization.
The New York Court of Appeals affirmed. 65 N.Y.2d 566, 493 N.Y.S.2d 988, 483 N.E.2d 1120 (1985).
The court recognized that “the task of the issuing magistrate was not
to decide guilt or innocence but to determine in a preliminary way from
the information submitted and available to him whether there was
probable cause to believe that the material to be seized was obscene
within the tripartite definition of the statute.”
Id., at 570, 493 N.Y.S.2d, at 991, 483 N.E.2d, at 1123. Applying that standard, it held the affidavits insufficient.
Near
the beginning of its opinion, the New York court reiterated this
Court's recent direction that the Fourth Amendment be applied with “
‘scrupulous exactitude’ ” in cases of searches for and seizures of
presumptively protected materials,
Maryland v. Macon, 472 U.S. 463, 468, 105 S.Ct. 2778, 2781, 86 L.Ed.2d 370 (1985); see also
Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431
(1965), and noted a “higher standard” for warrant determinations when
books and films are seized, citing Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 2797, 37 L.Ed.2d 757 (1973).
The New York court did not go on, however, to apply any extraordinary
standard of scrutiny to the determination of probable cause. Rather,
its holding was a simple one: “There must be enough information before
[the issuing magistrate] in one form or other ... to enable him to judge
the obscenity of the film, not of isolated scenes from it.” 65 N.Y.2d, at 571, 493 N.Y.S.2d, at 992, 483 N.E.2d, at 1124.
The affidavits, the court explained, merely cataloged offensive sex
acts depicted in the films. Such catalogs say nothing about the
“predominant appeal” of a film, its impact “considered as a whole,” or
its overall literary or artistic value. “Undoubtedly, similar lists
could readily be compiled by excerpting descriptions of scenes from
books and movies having recognized*887
merit. Stanley Kubrick's ‘Clockwork Orange’ and federico**1621
Fellini's ‘Satyricon’ come quickly to mind.”
Ibid. Because obscenity law requires examination of the films as
a whole, the court held, probable cause cannot be inferred from the
description of a few excerpted scenes.
Id., at 572, 493 N.Y.S.2d, at 992, 483 N.E.2d, at 1124.
II
Taken
in the abstract, the New York court's reasoning is unassailable. A
mere listing of sex acts depicted in a film, or a description of
excerpted scenes, says little about the predominant effect of the film
considered as a whole. It says nothing about whether the film,
considered as a whole, has any artistic value. And it says nothing
about how the film should be regarded in light of contemporary community
standards. Such a description, then, cannot establish even probable
cause to believe that the film is obscene. “[S]ex and obscenity are not
synonomous.”
Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498 (1957).
FN2
A magistrate armed only with such a description cannot “ ‘focus
searchingly on the question of obscenity,’ ” as the majority,
ante, at 1614, concedes he is obligated to do.
FN2.
Obscene material, considered as a whole, must not only be without
serious literary or other merit, but it must, applying contemporary
community standards, also appeal predominantly to a “shameful or morbid”
interest in sex. See
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985).
Indeed, three of the very films described by the affidavits in this
case have been declared outside the constitutional boundaries of
obscenity. See
United States v. Various Articles of Obscene Merchandise, 709 F.2d 132 (CA2 1983)
(“Deep Throat,” “Debbie Does Dallas,” and “Little Girls Blue” not
obscene, applying community standards of Southern District of New York).
The
majority's rejection of the New York court's reasoning appears to
derive from a largely unarticulated feeling that that reasoning is
inappropriately applied in the present case. As a result,
notwithstanding the sweeping legal principles set out in the majority's
opinion, the decision of this case ultimately rests on the mundane
application of clear law to
*888
undisputed
facts. The majority suggests that the New York court wrongly applied
its law because the affidavits described more than excerpted scenes:
they allowed the Magistrate to discern the “ ‘general theme and serious
value’ ” of the films, and established that sex acts “ ‘pervaded’ ” each
film.
Ante, at 1616.
The
problem with the majority's approach is that it is unsupported in the
texts of the affidavits. Although a boilerplate sentence in each
affidavit invokes the “content” of the films, and two of the affidavits
conclusorily assert that certain sex acts are depicted “throughout” the
film, the affidavits do not attempt to describe every scene in the films
or even most of the scenes. Rather, the scenes described in the
affidavits are simply those the author chose to describe. While
descriptions of sex acts pervade the
affidavits, it is hardly clear that depictions of sex acts pervade the
films. Similarly, while the “general tone” of the affidavits is
clear, we have little basis for a conclusion about the “general tone”
of the films.
The affidavits do
not purport to be exhaustive. They can be meaningful in considering
the artistic value of the films, taken as a whole, or the films'
predominant appeal, only if one assumes that everything, or almost
everything, worth noting in the films was incorporated into the
affidavits. Nothing in the affidavits, however, justifies that
assumption. The affidavits are precisely what the New York Court of
Appeals condemned: mere listings of selected scenes from the films that
involved depictions of sex. The films described could as well be
“Last Tango in Paris.”
The
majority's decision upholding a warrant authorization uninformed by any
information relating to crucial elements of the definition of obscenity
is especially incongruous because the majority overrules the institution
most closely attuned to the content
of those elements: the New York courts. The New York courts are well
suited to decide whether, on the basis of “contemporary community
standards,” the information*889
supporting a warrant authorization allows the magistrate to focus
searchingly on the question of obscenity, and to find probable cause
that given material is obscene. The New York courts have unanimously
held in this case that the affidavits were insufficient to achieve that
end. The majority's eagerness to reverse that fact-bound determination
in order to expedite an obscenity prosecution is inappropriate and
reflects a dubious notion of this Court's institutional role. Cf.
California v. Carney, 471 U.S. 386, 395, 105 S.Ct. 2066, 2071, 85 L.Ed.2d 406 (1985) (STEVENS, J., dissenting).
I dissent.
U.S.N.Y.,1986.
New York v. P.J. Video, Inc.
475 U.S. 868, 106 S.Ct. 1610, 89 L.Ed.2d 871, 54 USLW 4396
