First Amendment Bearing on Probable Cause and Particularity
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 particularly describing the place to be searched, and the persons or things to be seized.
First Amendment Bearing on Probable Cause and Particularity.—Where the warrant process is used to authorize seizure of books and other items that may be protected by the First Amendment, the Court has required government to observe more exacting standards than in other cases.135 Seizure of materials arguably protected by the First Amendment is a form of prior restraint that requires strict observance of the Fourth Amendment. At a minimum, a warrant is required, and additional safeguards may be required for large-scale seizures. Thus, in Marcus v. Search Warrant,136 the seizure of 11,000 copies of 280 publications pursuant to warrant issued ex parte by a magistrate who had not examined any of the publications but who had relied on the conclusory affidavit of a policeman was voided. Failure to scrutinize the materials and to particularize the items to be seized was deemed inadequate, and it was further noted that police “were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity.”137 A state procedure that was designed to comply with Marcus by the presentation of copies of books to be seized to the magistrate for his scrutiny prior to issuance of a warrant was nonetheless found inadequate by a plurality of the Court, which concluded that “since the warrant here authorized the sheriff to seize all copies of the specified titles, and since [appellant] was not afforded a hearing on the question of the obscenity even of the seven novels [seven of 59 listed titles were reviewed by the magistrate] before the warrant issued, the procedure was . . . constitutionally deficient.”138
Confusion remains, however, about the necessity for and the character of prior adversary hearings on the issue of obscenity. In a later decision the Court held that, with adequate safeguards, no preseizure adversary hearing on the issue of obscenity is required if the film is seized not for the purpose of destruction as contraband (the purpose in Marcus and A Quantity of Books), but instead to preserve a copy for evidence.139 It is constitutionally permissible to seize a copy of a film pursuant to a warrant as long as there is a prompt post-seizure adversary hearing on the obscenity issue. Until there is a judicial determination of obscenity, the Court advised, the film may continue to be exhibited; if no other copy is available either a copy of it must be made from the seized film or the film itself must be returned.140
The seizure of a film without the authority of a constitutionally sufficient warrant is invalid; seizure cannot be justified as incidental to arrest, as the determination of obscenity may not be made by the officer himself.141 Nor may a warrant issue based “solely on the conclusory assertions of the police officer without any inquiry by the [magistrate] into the factual basis for the officer’s conclusions.”142 Instead, a warrant must be “supported by affidavits setting forth specific facts in order that the issuing magistrate may ‘focus searchingly on the question of obscenity.’”143 This does not mean, however, that a higher standard of probable cause is required in order to obtain a warrant to seize materials protected by the First Amendment. “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 . . . .’”144
In Stanford v. Texas,145 the Court voided a seizure of more than 2,000 books, pamphlets, and other documents pursuant to a warrant that merely authorized the seizure of books, pamphlets, and other written instruments “concerning the Communist Party of Texas.” “[T]he constitutional requirement that warrants must particularly describe the ‘things to be seized’ 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. . . . No less a standard could be faithful to First Amendment freedoms.”146
However, the First Amendment does not bar the issuance or execution of a warrant to search a newsroom to obtain photographs of demonstrators who had injured several policemen, although the Court appeared to suggest that a magistrate asked to issue such a warrant should guard against interference with press freedoms through limits on type, scope, and intrusiveness of the search.147
135 Marcus v. Search Warrant, 367 U.S. 717, 730–31 (1961); Stanford v. Texas, 379 U.S. 476, 485 (1965). For First Amendment implications of seizures under the Federal Racketeer Inﬂuenced and Corrupt Organizations Act (RICO), see First Amendment: Obscenity and Prior Restraint.
136 367 U.S. 717 (1961). See Kingsley Books v. Brown, 354 U.S. 436 (1957).
137 Marcus v. Search Warrant, 367 U.S. 717, 732 (1961).
138 A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964).
139 Heller v. New York, 413 U.S. 483 (1973).
140 Id. at 492–93. But cf. New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986), rejecting the defendant’s assertion, based on Heller, that only a single copy rather than all copies of allegedly obscene movies should have been seized pursuant to warrant.
141 Roaden v. Kentucky, 413 U.S. 496 (1973). See also Lo-Ji Sales v. New York, 442 U.S. 319 (1979); Walter v. United States, 447 U.S. 649 (1980). These special constraints are inapplicable when obscene materials are purchased, and there is consequently no Fourth Amendment search or seizure. Maryland v. Macon, 472 U.S. 463 (1985).
142 Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968) (per curiam).
143 New York v. P.J. Video, Inc., 475 U.S. 868, 873–74 (1986) (quoting Marcus v. Search Warrant, 367 U.S. 717, 732 (1961)).
144 New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986).
145 379 U.S. 476 (1965).
146 379 U.S. at 485–86. See also Marcus v. Search Warrant, 367 U.S. 717, 723 (1961).
147 Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See id. at 566 (containing suggestion mentioned in text), and id. at 566 (Justice Powell concurring) (more expressly adopting that position). In the Privacy Protection Act, Pub. L. 96–440, 94 Stat. 1879 (1980), 42 U.S.C. § 2000aa, Congress provided extensive protection against searches and seizures not only of the news media and news people but also of others engaged in disseminating communications to the public, unless there is probable cause to believe the person protecting the materials has committed or is committing the crime to which the materials relate.