Added: Charistopher Mulvey - Date: 08.06.2022 14:21 - Views: 23728 - Clicks: 4524
Guste, Jr. Fray, Asst. Parish Atty. Parish of Jefferson v. Bayou Landing Limited, Inc. The facts surrounding the institution of this suit follow. The Vice Squad of the Jefferson Parish Sheriff's Office were conducting an investigation into possible criminal violations concerning the sale of obscene materials at the premises occupied by Bayou Landing Limited, Inc.
On May 28, a detective of the Jefferson Parish Sheriff's Office seized a quantity of books that he believed to be obscene. On May 29, another detective of the Jefferson Parish Sheriff's Office seized a quantity of books, also believing that they were obscene.
Neither detective had obtained a warrant for the seizure, but rather made the determination that these materials were obscene by reading and applying the applicable Jefferson Parish obscenity ordinance. Neither detective paid for the books. Approximately five cartons of materials were thus seized without benefit of a warrant.
On June 2, two other detectives of the Jefferson Parish Sheriff's Office entered the defendant book store. Each officer viewed one movie, available to customers for showing in small movie viewing machines in the book store. After viewing the movies, the officers purchased three books with marked currency. On the basis of their observations the officers applied for a search warrant.
In their affidavit the officers related that the books and movies depicted such acts as oral copulation, anal sex, masturbation, sadism, masochism, lesbian activity and cunnilingus. A search warrant was issued for the search of the book store, authorizing the seizure of "pornographic material to wit: Magazines, movies, projectors, recorded U. On June 4,over one year later, the Parish of Jefferson filed this action pursuant to R. Prior to trial on the merits, the defendant filed numerous pre-trial motions including a motion to suppress the seven cartons of material that were seized from the defendant book store.
Two cartons were seized pursuant to the warrant. After a hearing on the motion to suppress, the trial judge held that the search warrant was valid and ruled that the materials seized pursuant to the warrant were admissible in the injunction proceeding. While the trial judge did not specifically suppress the materials seized in the warrantless searches, none of the items so seized were admitted into evidence at trial and do not form a part of this record. The Court of Appeal affirmed the trial judge's ruling that the evidence seized pursuant to the warrant was admissible. The questions thus presented by this review are: 1 are the constitutional prohibitions against unreasonable searches and seizures applicable to this proceeding and 2 if so, did the seizure of materials pursuant to this warrant comply with constitutional requirements?
The Court of Appeal held that in a civil action such as this, the Fourth Amendment relating to illegal searches and seizures was not relevant. The court reached this conclusion through an erroneous interpretation of Gulf States Theatres of Louisiana, Inc. Richardson, So. Neither constitutional provision restricts its applicability to criminal cases. The United States Supreme Court has specifically applied the protections of the First and Fourth Amendments when allegedly obscene material is sought to be regulated in civil proceedings. In Marcus v.
Search Warrant of Property, etc. In that case a circuit judge had ed numerous search warrants authorizing:. The Supreme Court held that the evidence seized pursuant to the warrants must be suppressed and that states were not free to adopt whatever procedures they pleased to deal with obscenity without regard to constitutionally protected speech. Since Missouri's civil procedure to condemn obscene material lacked safeguards to assure that non-obscene material received the constitutional protection to which it was entitled, the Missouri procedure was struck down.
See also, A Quantity of Copies of Books v. Kansas, U. For further cases applying the Fourth Amendment guarantees in civil proceedings see e. Municipal Court, U. City of Seattle, U. See also, Annot. Plaintiff's argument that obscene materials are unprotected by the First Amendment of the United States Constitution begs the question. The danger to restraint of protected expression requires the application of constitutionally sanctioned procedures for the seizure of printed materials.
Printed material, offered for sale to the public, cannot constitutionally be seized for obscenity without a prior judicial determination that the matter to be seized is at least probably obscene. Since constitutional procedures govern seizures of printed matter, we must determine whether the seizure here was unreasonable by established constitutional standards. The Court of Appeal held that as long as a speedy adversary hearing was available after the seizure to litigate the issue of obscenityallegedly obscene material could be seized prior to the initiation of the injunction suit without regard to the reasonableness of the search and seizure.
Thus, the case did not and could not hold that a valid search warrant was not required when the evidence seized was to be used in a civil suit. In fact, the court indicated that in civil proceedings it might be necessary always to have a complete adversary hearing prior to seizure. The pertinent language is as follows:. However, in Heller v.
New York, U. Nevertheless, the court stated that "the necessity for a prior judicial determination of probable cause will protect against gross abuses, while the availability of a prompt judicial determination in an adversary proceeding following the seizure assures that difficult marginal cases will be fully considered in light of First Amendment guarantees.
It is clear that at the very least, prior to seizure, there must be a judicial determination as to the obscenity of the materials. Search Warrant, supra, warrants were issued for the seizure of allegedly obscene materials, which warrants were based on the conclusory allegations of a police officer.
The warrants authorized the police to seize any "obscene" materials located on certain premises. The Supreme Court struck down the procedure because the warrants were issued without any examination by the issuing judge of any of the materials alleged to be obscene.
The court used the following language in pointing out the infirmities in the warrants:. Relying on the Marcus decision, this court in State v. Neal, So. See also, Lee Art Theater v. Virginia, U. The warrant and seizure in this case suffers from the same infirmity. Although the affiant police officers had purchased three specific books and had seen two films prior to applying for the search warrant, there is no indication that any of those books had been scrutinized by the issuing magistrate.
Even if the neutral magistrate had personally viewed the materials and determined that they were obscene, the warrant is defective because it did not limit its authorization to the seizure of materials already determined by the magistrate to be obscene. This warrant authorized precisely that type of "blanket or general search," granting the unlimited discretion to the seizing officer which has been condemned in this cases discussed.
States are not as free to regulate speech and printed matter as they are to regulate other conduct determined by legislatures to be criminal. Smith v. California, U. What is an "unreasonable" seizure may depend on the setting and the material seized. Roaden v. Kentucky, supra. Police seizure without a warrant is prior restraint of First Amendment freedoms, and is, in itself, unreasonable.
Not only must the police supply factual information in the application for the warrant sufficient to convince the magistrate that the material to be seized is probably obscene; the police are restricted in the execution of the warrant to specific materials the magistrate has determined, based on the facts supplied him, to be probably obscene. Neither the conclusory determination of the police before the warrant issues, nor after the warrant issues, that printed material is obscene, supplies the safeguards against possible invasion of specifically protected constitutional rights.
There is no "plain view" doctrine in First Amendment cases. As stated in Stanford v.
Texas, U. Therefore, the trial judge should have granted defendant's motion to suppress the evidence seized pursuant to the warrant. As noted above the injunction as amended by the Court of Appeal restrains the defendant from distributing any obscene materials and then defines "obscene materials" by using the language of R. The injunction is overly broad; it is a prohibited prior restraint upon the right of free speech protected by our federal and state constitutions.
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Parish of Jefferson v. Bayou Landing Ltd., Inc.