Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979). · Go Syfert
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979). Cases Citing This Book View Copy Cite
Quick Summary

A judge violates the Fourth Amendment by acting as an adjunct law enforcement officer when participating in the execution of a search warrant.

After a state investigator purchased obscene films from a bookstore, a town justice issued a warrant that lacked a particular description of items to be seized and authorized the justice to participate in the search. During the execution of the warrant, the justice and a large police party conducted a sweeping search of the premises, seizing hundreds of magazines and films. Although the state argued that the store's public nature diminished the expectation of privacy, the Court held that a retail store's invitation to the public does not consent to wholesale searches that violate Fourth Amendment guarantees. Because the justice acted as an adjunct law enforcement officer rather than a neutral magistrate, the search was unconstitutional.

2,205 citation events (728 in the last 25 years) across 148 distinct courts.
Strongest positive: People v. Pearson (illappct, 2021-02-22) · Strongest negative: Cynthia Archer v. John Chisholm (ca7, 2017-08-29)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited "but see" Cynthia Archer v. John Chisholm (3×)
7th Cir. · 2017 · signal: but see · confidence high
But see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-28 , 99 S.Ct. 2319 , 60 L.Ed.2d 920 (1979) (local justice did not act with the required neutrality and detachment when he participated in and directed the seizure of items during the execution of a warrant he had issued).
cited Cited "but see" United States v. Bobby Bennett, Jr.
6th Cir. · 1999 · signal: but cf. · confidence high
But cf. id. at 321-23, 99 S.Ct. 2319 .
examined Cited "but see" Namen v. State (3×)
Alaska Ct. App. · 1983 · signal: but see · confidence high
But see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325 , 99 S.Ct. 2319, 2323 , 60 L.Ed.2d 920, 928 (1979) (condemning overly broad seizures of property under a general warrant contemplating post-seizure identification of specific items sought). 9 .See also United States v. Townsend, 394 F.Supp. at 745-47 ; United States v. Pinero, 329 F.Supp. 992, 996 (S.D.N.Y.1971); People v. Harmon, 46 Ill.Dec. 29 -30, 413 N.E.2d at 469-70 . 10 .
discussed Cited as authority (verbatim quote) People v. Pearson
Ill. App. Ct. · 2021 · signal: see also · quote attribution · 1 verbatim quote · confidence high
there is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to fourth amendment guarantees.
examined Cited as authority (verbatim quote) Patterson v. State (7×) also: Cited as authority (rule), Cited "see"
Md. · 2007 · quote attribution · 2 verbatim quotes · confidence high
this search warrant and what followed the entry on petitioner's premises are reminiscent of the general warrant or writ of assistance of the 18th century against which the fourth amendment was intended to protect.
examined Cited as authority (quoted) United States v. Joseph Lewis (3×)
8th Cir. · 2017 · quote attribution · 3 verbatim quotes · confidence low
tjhere is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to fourth amendment guarantees.
examined Cited as authority (quoted) State v. Phillips. (3×)
Haw. · 2016 · signal: see also · quote attribution · 3 verbatim quotes · confidence low
there is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to fourth amendment guarantees.
examined Cited as authority (quoted) Midwest Retailer Associated, Ltd. v. City of Toledo (3×)
N.D. Ohio · 2008 · signal: cf. · quote attribution · 3 verbatim quotes · confidence low
there is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to fourth amendment guarantees.
discussed Cited as authority (quoted) No. 99-1893, 99-1894
4th Cir. · 2000 · signal: cf. · quote attribution · 1 verbatim quote · confidence low
there is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to fourth amendment guarantees.
examined Cited as authority (quoted) Doe v. Broderick (4×)
4th Cir. · 2000 · signal: cf. · quote attribution · 4 verbatim quotes · confidence low
there is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not con- form to fourth amendment guarantees.
discussed Cited as authority (rule) Clemmie Lee Spencer v. United States of America
N.D. Ala. · 2026 · confidence medium
The Court has found a lack of independence when confronted by warrants issued by a state attorney general “who was actively in charge of the investigation and later was to be chief prosecutor at trial,” Coolidge v. New Hampshire, 403 U.S. 443, 450 (1971); a justice of the peace whose compensation “was directly dependent on how many warrants he issued,” Connally v. Georgia, 429 U.S. 245, 246-50 (1977); and a judge who “bec[a]me a member, if not the leader, of the search party which was essentially a police operation,” Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327 (1979).
discussed Cited as authority (rule) Robert Silva-Prentice v. Dean Gray
D. Mass. · 2025 · confidence medium
“This rule is general in nature and directs an inquiring court to ask a simple question: ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Webster v. Gray, 39 F.4th 27, 34 (1st Cir. 2022) (quoting Jackson, 442 U.S. at 319) (emphasis in original).
discussed Cited as authority (rule) Elfand v. Adams
N.Y. Sup. Ct., New York Cty. · 2024 · confidence medium
Thus, Elfand cannot challenge the enforcement actions taken against Empire on the basis of an alleged violation of his own right to be free from unreasonable search and seizure. [FN3] He also cannot challenge the enforcement actions on the basis of a violation of Empire's expectation of privacy ( see e.g., New York v Burger , 482 US 691, 712-713 [1987]; Lo-Ji Sales, Inc. v New York , 442 US 319, 329 [1979]), because that is a claim exclusive to Empire. [FN4] Having considered the arguments presented, it is the determination of this court that neither Elfand nor the 73 other purported Empire em…
discussed Cited as authority (rule) Elfand v. Adams
N.Y. Sup. Ct., New York Cty. · 2024 · confidence medium
Thus, Elfand cannot challenge the enforcement actions taken against Empire on the basis of an alleged violation of his own right to be free from unreasonable search and seizure. [FN3] He also cannot challenge the enforcement actions on the basis of a violation of Empire's expectation of privacy ( see e.g., New York v Burger , 482 US 691, 712-713 [1987]; Lo-Ji Sales, Inc. v New York , 442 US 319, 329 [1979]), because that is a claim exclusive to Empire. [FN4] Having considered the arguments presented, it is the determination of this court that neither Elfand nor the 73 other purported Empire em…
discussed Cited as authority (rule) Murrell v. Basting
E.D. Wis. · 2024 · confidence medium
This burden “is not satisfied by showing a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U.S. 491, 497 (1983) (citing Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 (1979); Schneckloth v. Bustamonte, 412 U.S. 218 , 233–34 (1973); Bumper v. North Carolina, 391 U.S. 543 , 548–49 (1968); Johnson v. United States, 333 U.S. 10, 13 (1948); Amos v. United States, 255 U.S. 313, 317 (1921)).
cited Cited as authority (rule) Borisova v. Friberg
E.D.N.Y · 2023 · confidence medium
And retail stores that invite the public to enter do not “consent[ ] to wholesale searches and seizures.” Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 (1979).
cited Cited as authority (rule) CLARK v. United States
S.D. Ind. · 2023 · confidence medium
Mr. Clark borrows language from Lo-Ji Sales v. New York, 442 U.S. 319, 327 (1979), in which the magistrate who authorized a warrant actually participated in the search at issue.
discussed Cited as authority (rule) United States v. Tawhyne Patterson, Sr.
8th Cir. · 2023 · confidence medium
The Supreme Court has found violations of the obligation to be neutral and detached where the judge possessed a pecuniary interest in issuing the warrant, Connally v. Georgia, 429 U.S. 245, 251 (1977), and where the judge actively participated in the police investigation, Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327-28 (1979).
discussed Cited as authority (rule) Whitney Allen Barker v. Commonwealth of Virginia
Va. Ct. App. · 2022 · confidence medium
Thus, if 7 See also Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327 (1979) (finding judicial abandonment when the magistrate “allowed himself to become a member, if not the leader, of the search party which was essentially a police operation”); United States v. Frazier, 423 F.3d 526, 537 (6th Cir. 2005) (holding appellant’s assertion that the magistrate “issued the warrant without reading the affidavit” was unsupported by the record, and thus the magistrate did not abandon his judicial role); United States v. Koerth, 312 F.3d 862, 869 (7th Cir. 2002) (holding that there was no evide…
discussed Cited as authority (rule) Gibson v. Goldston
S.D.W. Va · 2022 · confidence medium
Indeed, searches are so quintessentially executive in nature that a judge who participates in one acts “not . . . as a judicial officer, but as an adjunct law enforcement officer.” Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327 (1979).
discussed Cited as authority (rule) Delano Grangruth v. Commonwealth of Virginia
Va. Ct. App. · 2022 · confidence medium
Exceptions to this general rule include when the search warrant affidavit contains statements the officer knows are false or that represent a reckless disregard for the truth, Franks v. Delaware, 438 U.S. 154, 156 (1978); when the magistrate has acted with disregard for his role as a neutral and detached judicial officer, Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27 (1979); when the warrant “affidavit [is] ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable[,]’” Leon, 468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 59…
discussed Cited as authority (rule) In the Matter of the Honorable Louise E. Goldston, Judge of the Thirteenth Family Court Circuit (2×)
W. Va. · 2021 · confidence medium
Hensley v. Nowak, 52 Ohio St. 3d 98, 99 , 556 N.E.2d 171, 173 (1990) (per curiam) (quoting Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327 (1979)) (holding that a writ of prohibition would not issue to restrain administrative searches because they are neither judicial nor quasi-judicial acts).
cited Cited as authority (rule) Whittington v. State
Md. · 2021 · confidence medium
Lo-ji Sales, Inc. v. New York, 442 U.S. 319, 326 , 99 S. Ct. 2319, 2324 (1979).
discussed Cited as authority (rule) OSORIO v. ANDERSON
D.N.J. · 2020 · confidence medium
Based upon this record, and viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” See Jackson, 442 U.S. at 319.
discussed Cited as authority (rule) United States v. Perkins
C.A.A.F. · 2019 · confidence medium
As an example of the latter, in Lo-Ji Sales, Inc. v. New York, the magistrate accompanied police and prosecutors when they executed the search warrant he had just authorized, thereby becoming an “adjunct law enforcement officer.” 442 U.S. 319, 327 (1979).
discussed Cited as authority (rule) United States v. Perkins
C.A.A.F. · 2019 · confidence medium
As an example of the latter, in Lo-Ji Sales, Inc. v. New York, the magistrate accompanied police and prosecutors when they executed the search warrant he had just authorized, thereby becoming an “adjunct law enforcement officer.” 442 U.S. 319, 327 (1979).
cited Cited as authority (rule) Robert L. Dowell v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2016 · confidence medium
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326 (1979).
discussed Cited as authority (rule) People v. Mendoza CA6
Cal. Ct. App. · 2016 · confidence medium
Lo-Ji Sales, Inc. v. New York 442 U.S. 319, 326-327 (1979).” (Leon, supra, 468 U.S. at p. 914 .) Defendant makes no suggestion that the magistrates abdicated their role as a “neutral and detached” arbiters and merely rubber stamped the search warrants for police.
examined Cited as authority (rule) State of Arizona v. Francisco L Encinas Valenzuela (4×) also: Cited "see, e.g."
Ariz. · 2016 · confidence medium
See, e.g., Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion) (citing Schneckloth and Bumper to note that the burden to prove consent is not satisfied by showing a mere submission to a claim of lawful authority); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 (1979) (relying on Bumper to hold that “‘consent’ given in the face of ‘colorably lawful coercion’” was invalid).
examined Cited as authority (rule) United States v. Rickey Beene (5×) also: Cited "see, e.g."
5th Cir. · 2016 · confidence medium
See, e.g., Bond, 529 U.S. at 338-39 (holding that an officers’ physical manipulation of a bus passenger’s bag constituted a search because the exploratory manner in which the bag was felt exceeded the usual 26 Case: 14-30476 Document: 00513410139 Page: 27 Date Filed: 03/08/2016 No. 14-30476 handling that would be expected); Arizona v. Hicks, 480 U.S. 321, 325 (1987) (holding that moving stereo equipment in plain view a “few inches” to record the equipment’s serial numbers constituted a search); New York v. Class, 475 U.S. 106, 114-15 (1986) (holding that reaching into a vehicle’s i…
discussed Cited as authority (rule) Joshoa Immanuel Perez v. State
Tex. App. · 2014 · confidence medium
ANN. art. 38.04 (West 1979) (stating that “[t]he jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony” except where provided otherwise by law); Jackson, 442 U.S. at 319 (reiterating it is strictly the province of the jury “fairly to resolve conflicts -2- 04-13-00476-CR in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts”).
discussed Cited as authority (rule) State of New Jersey v. Calvin Presley
N.J. Super. Ct. App. Div. · 2014 · confidence medium
Historical examples of this constitutional defect have occurred when the magistrate acted in a law enforcement capacity rather than as a judicial officer, e.g., Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327 , 99 S. Ct. 2319, 2325 , 60 L.
discussed Cited as authority (rule) United States v. Garcia-Escalera
N.D. Okla. · 2014 · confidence medium
If a warrant is invalid, the good faith rule does not prevent exclusion of evidence (1) “if the magistrate or judge issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;” (2) “where the magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 , 99 S.Ct. 2319 , 60 L.Ed.2d 920 (1979);” (3) in circumstances that “no reasonably well trained officer should rely on the warrant;” and (4) if a police officer relies o…
cited Cited as authority (rule) Benjamin Leal Iii v. State
Tex. App. · 2013 · confidence medium
App. 2010) (citing Jackson, 442 U.S. at 319); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
cited Cited as authority (rule) Benjamin Leal, Iii v. State
Tex. App. · 2013 · confidence medium
App. 2010) (citing Jackson; 442 U.S. at 319); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
discussed Cited as authority (rule) In Re Appeal of Application for Search Warrant (2×)
Vt. · 2012 · confidence medium
United States v. Grubbs, 547 U.S. 90, 97 (2006) (concluding that Fourth Amendment does not require triggering condition for anticipatory warrant be particularly described because constitution “does not set forth some general ‘particularity requirement’”); Richards v. Wisconsin, 520 U.S. 385, 395 (1997) (affirming ability of magistrate to issue no-knock warrant, but holding that no-knoek entry was reasonable under circumstances even when warrant for such was not granted in advance); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-27 (1979) (holding that magistrate’s participation in …
discussed Cited as authority (rule) State of Texas v. Weaver, Roy Andrew
Tex. Crim. App. · 2011 · confidence medium
Lo-Ji Sales, Inc. v. New York , 442 U.S. 319, 329 (1979) (Fourth Amendment violated by sweeping search of "adult" bookstore; officers viewed films "without the payment a member of the public would be required to make," and viewed magazines and books "not . . . as a customer would ordinarily see them" by removing cellophane wrappers). 31. 1 LaFave, supra note 20 § 2.4(b) at 630.
discussed Cited as authority (rule) State of Texas v. Weaver, Roy Andrew
Tex. Crim. App. · 2011 · confidence medium
The Supreme Court has made it clear that a dog 28 Maryland v. Macon, 472 U.S. 463, 470 (1985). 29 United States v. Morton, 17 F.3d 911, 913 (6th Cir. 1994) (discovery and seizure of the gun did not violate the Fourth Amendment; testimony fairly established that the auto shop was open to the public for business, so the officers lawfully entered the shop, and, when the defendant stood up, an officer saw, in plain view, a gun in defendant’s back pocket). 30 Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 (1979) (Fourth Amendment violated by sweeping search of “adult” bookstore; officers vi…
examined Cited as authority (rule) United States v. Clark (3×) also: Cited "see"
2d Cir. · 2011 · confidence medium
But, as the Court later explained, what this means is that officers cannot reasonably rely on a warrant issued by a magistrate who “wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 [ 99 S.Ct. 2319 , 60 L.Ed.2d 920 ] (1979).” Id. at 923, 99 S.Ct. 2319 .
discussed Cited as authority (rule) Rance Duane Shelton v. State
Tex. App. · 2009 · confidence medium
App. 2007). 4: Florida v. Royer , 460 U.S. 491, 497 , 103 S. Ct. 1319, 1324 (1983) (citing Lo-Ji Sales, Inc. v. New York , 442 U.S. 319, 329 , 99 S. Ct. 2319, 2326 (1979); Schneckloth v. Bustamonte , 412 U.S. 218 , 233–34, 93 S. Ct. 2041 , 2050–51 (1973); Bumper , 391 U.S. at 548–49, 88 S. Ct. at 1791–92; Johnson v. United States , 333 U.S. 10, 13 , 68 S. Ct. 367, 368 (1948); Amos v. United States , 255 U.S. 313, 317 , 41 S. Ct. 266, 268 (1921)). 5: Williams v. State , 252 S.W.3d 353, 356 (Tex. Crim.
discussed Cited as authority (rule) Rance Duane Shelton v. State
Tex. App. · 2009 · confidence medium
App. 2007). 4 … Florida v. Royer, 460 U.S. 491, 497 , 103 S. Ct. 1319, 1324 (1983) (citing Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 , 99 S. Ct. 2319, 2326 (1979); Schneckloth v. Bustamonte, 412 U.S. 218 , 233–34, 93 S. Ct. 2041 , 2050–51 (1973); Bumper, 391 U.S. at 548–49, 88 S. Ct. at 1791–92; Johnson v. United States, 333 U.S. 10, 13 , 68 S. Ct. 367, 368 (1948); Amos v. United States, 255 U.S. 313, 317 , 41 S. Ct. 266, 268 (1921)). 5 … Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim.
examined Cited as authority (rule) United States v. Johnson (3×) also: Cited "see, e.g."
S.D. Iowa · 2007 · confidence medium
Suppression of the evidence is appropriate in such an instance because “no reasonably well trained officer should rely on the warrant.” 14 Id. at 923, 104 S.Ct. 3405 . *565 Here, the Court cannot find that there is sufficient evidence to hold that the Polk County District Court Judge was not acting in a neutral and detached manner when he issued the warrant.
cited Cited as authority (rule) United States v. Ray
4th Cir. · 2007 · confidence medium
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326 (1979). 4 and the investigators knew defendant was a convicted felon, the investigators seized the two weapons.
discussed Cited as authority (rule) Elisa Kenty Robinson v. Commonwealth (2×) also: Cited "see"
Va. Ct. App. · 2006 · signal: cf. · confidence medium
Id. - 31 - a lawful objective, unconnected to any search for the fruits and instrumentalities of criminal activity, their entry into the curtilage after not receiving an answer at the front door might be reasonable as entry into the curtilage may provide the only practicable way of attempting to contact the resident . . . .” (emphasis added)); United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir. 2001) (“Law enforcement officers may encroach upon the curtilage of a home for the purpose of asking questions of the occupants.” (emphasis added)); Daoust, 916 F.2d at 758 (“A policeman may…
examined Cited as authority (rule) George Fisher Robinson v. Commonwealth (5×) also: Cited "see"
Va. Ct. App. · 2006 · signal: cf. · confidence medium
Id. - 31 - a lawful objective, unconnected to any search for the fruits and instrumentalities of criminal activity, their entry into the curtilage after not receiving an answer at the front door might be reasonable as entry into the curtilage may provide the only practicable way of attempting to contact the resident . . . .” (emphasis added)); United States v. Hammett, 236 F.3d 1054, 1059 (9th Cir. 2001) (“Law enforcement officers may encroach upon the curtilage of a home for the purpose of asking questions of the occupants.” (emphasis added)); Daoust, 916 F.2d at 758 (“A policeman may…
cited Cited as authority (rule) Ferguson v. State
Md. Ct. Spec. App. · 2004 · confidence medium
Id at 327, 99 S.Ct. 2319 ; State v. Smith, 305 Md. 489, 518-20 , 505 A.2d 511 (1986); Vandegrift v. State, 82 Md.App. 617, 630 , 573 A.2d 56 (1990).
cited Cited as authority (rule) Parrin Hayes v. State
Tex. App. · 2004 · confidence medium
Lo-Ji Sales, Inc. v. New York , 442 U.S. 319, 329 (1979). 6.
cited Cited as authority (rule) Parrin Hayes v. State
Tex. App. · 2004 · confidence medium
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 (1979). 9 Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim.
discussed Cited as authority (rule) Commonwealth v. Brandenburg (2×)
Ky. · 2003 · confidence medium
The sole issue before us is whether a trial commissioner who is married to an employee of the Commonwealth Attorney's office, "manifest[s] that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure." Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326 , 99 S.Ct. 2319, 2324 , 60 L.Ed.2d 920, 928 (1979).
cited Cited as authority (rule) Durham Video & News, Inc. v. Durham Board of Adjustment
N.C. Ct. App. · 2001 · confidence medium
In Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 , 60 L.
Retrieving the full opinion text from the archive…
Lo-Ji Sales, Inc.
v.
New York
78-511.
Supreme Court of the United States.
Jun 11, 1979.
442 U.S. 319
1979 U.S. LEXIS 107
Bernard A. Berkman argued the cause and filed briefs for petitioner., Richard L. Parker argued the cause for respondent. With him on the brief was David S. Ritter. *
Burger.
Cited by 640 opinions  |  Published
3 passages pin-cited by 5 cases
Pinpoint authority: #9,699 of 633,719
Citer courts: Fourth Circuit (5) · Eighth Circuit (3) · Hawaii Supreme Court (3) · N.D. Ohio (3)
[*321] Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari on claims that the seizure of magazines, films, and other objects from petitioner's bookstore violated guarantees of the First, Fourth, and Fourteenth Amendments. 439 U. S. 978 (1978).

I

On June 20, 1976, an investigator for the New York State Police purchased two reels of film from petitioner’s so-called “adult” bookstore. Upon viewing them, he concluded the films violated New York’s obscenity laws. On June 25, he took them to a Town Justice for a determination whether there was reasonable cause to believe the films violated the state obscenity laws so as to justify a warrant to search the seller’s store. The Town Justice viewed both films in their entirety, and he apparently concluded they were obscene. Based upon an affidavit of the investigator subscribed before the Town Justice after this viewing, a warrant issued authorizing the search of petitioner’s store and the seizure of other copies of the two films exhibited to the Town Justice.

The investigator’s affidavit also contained an assertion that “similar” films and printed matter portraying similar activities could be found on the premises, and a statement of the affiant’s belief that the items were possessed in violation of the obscenity laws. The warrant application requested that the Town Justice accompany the investigator to petitioner’s store for the execution of the search warrant. The stated purpose was to allow the Town Justice to determine independently if any other items at the store were possessed in violation of law and subject to seizure. The Town Justice agreed. Accordingly, the warrant also contained a recital that authorized the seizure of “[t]he following items that the Court[*322] independently [on examination] has determined to be possessed in violation of Article 235 of the Penal Law . [1] However, at the time the Town Justice signed the warrant there were no items listed or described following this statement. As noted earlier, the only “things to be seized” that were described in the warrant were copies of the two films the state investigator had purchased. Before going to the store, the Town Justice also signed a warrant for the arrest of the clerk who operated the store for having sold the two films to the investigator.

The Town Justice and the investigator enlisted three other State Police investigators, three uniformed State Police officers, and three members of the local prosecutor’s office — a total of 11 — and the search party converged on the bookstore. The store clerk was immediately placed under arrest and advised of the search warrant. He was the only employee present; he was free to continue working in the store to the extent the search permitted, and the store remained open to the public while the party conducted its search mission which was to last nearly six hours.

The search began in an area of the store which contained booths in which silent films were shown by coin-operated projectors. The clerk adjusted the machines so that the films could be viewed by the Town Justice without coins; it is disputed whether he volunteered or did so under compulsion of the arrest or the warrant. See infra, at 329. The Town Justice viewed 23 films for two to three minutes each and, satisfied there was probable cause to believe they were obscene, then ordered the films and the projectors seized.

The Town Justice next focused on another area containing four coin-operated projectors showing both soundless and sound films. After viewing each film for two to five minutes,[*323] again without paying, he ordered them seized along with their projectors.

The search party then moved to an area in which books and magazines were on display. The magazines were encased in clear plastic or cellophane wrappers which the Town Justice had two police officers remove prior to his examination of the books. Choosing only magazines that did not contain significant amounts of written material, he spent not less than 10 seconds nor more than a minute looking through each one. When he was satisfied that probable cause existed, he immediately ordered the copy which he had reviewed, along with other copies of the same or “similar” magazines, seized. An investigator wrote down the titles of the items seized. All told, 397 magazines were taken.

The final area searched was one in which petitioner displayed films and other items for sale behind a glass enclosed case. When it was announced that each box of film would be opened, the clerk advised that a picture on the outside of the box was representative of what the film showed. Therefore, if satisfied from the picture that there was probable cause to believe the film in the box was obscene, the Town Justice ordered the seizure of all copies of that film. As with the magazines, an investigator wrote down the titles of the films seized, a total of 431 reels. [2] Miscellaneous other items, including business records, were also seized, but no issue concerning them is raised here.

Throughout the day, two or three marked police cars were parked in front of the store and persons who entered the store were asked to show identification and their names were taken by the police. Not surprisingly, no sales were made during the period the search party was at the store, and no customers or potential customers remained in the store for any appreciable time after becoming aware of the police presence.

[*324] After the search and seizure was completed, the seized items were taken to a State Police barracks where they were inventoried. Each item was then listed on the search warrant, and late the same night the completed warrant was given to the Town Justice. The warrant, which had consisted of 2 pages when he signed it before the search, by late in the day contained 16 pages. It is clear, therefore, that the particular description of “things to be seized” was entered in the document after the seizure and impoundment of the books and other articles.

The items seized formed the basis for a three-count information charging petitioner with obscenity in the second degree under New York law. [3] The counts were based upon the three main groups of items seized: the magazines, Count I; the films for sale to the public, Count II; and the films and coin-operated projectors, Count III. Before trial, petitioner moved to suppress all the evidence upon which the three counts were based because it had been searched for and seized in violation of the First, Fourth, and Fourteenth Amendments. The motion was denied. Petitioner then entered a guilty plea to all three counts and was fined $1,000 on each. Accordingly, the obscenity of the magazines and films having been the subject of a judicial confession, there is no issue of obscenity in the case. [4] Only the validity of the warrant and the search and seizure of the property are before us.

[*325] New York permits appeal of a denial of a motion to suppress even after a plea of guilty to the charge. N. Y. Crim. Proc. Law §710.70 (2) (McKinney 1971). Pursuant to this procedure, petitioner appealed and the intermediate appellate court for that judicial district affirmed the convictions. A timely application for leave to appeal to the New York Court of Appeals was denied.

II

This search warrant and what followed the entry on petitioner’s premises are reminiscent of the general warrant or writ of assistance of the 18th century against which the Fourth Amendment was intended to protect. See Marshall v. Barlow’s, Inc., 436 U. S. 307, 311 (1978); Stanford v. Texas, 379 U. S. 476, 481 (1965); Marcus v. Search Warrant, 367 U. S. 717, 724 (1961). Except for the specification of copies of the two films previously purchased, the warrant did not purport to “particularly describ[e] . . . the . . . things to be seized.” U. S. Const., Arndt. 4. Based on the conclusory statement of the police investigator 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. Roaden v. Kentucky, 413 U. S. 496, 502 (1973); Stanford v. Texas, supra, at 485; Marcus v. Search Warrant, supra, at 732. Nor does the Fourth Amendment countenance open-ended warrants, to be completed while a search is being conducted and items seized or after the seizure has been carried out.

This search began when the local justice and his party entered the premises. But at that time there was not sufficient probable cause to pursue a search beyond looking for additional copies of the two specified films, assuming the validity of searching even for those. And the record is clear[*326] that the search began and progressed pursuant to the sweeping open-ended authorization in the warrant. It was not limited at the outset as a search for other copies of the two “sample” films; it expanded into a more extensive search because other items were found that the local justice deemed illegal. Therefore, we have no occasion to decide whether in this context the “plain view” doctrine might be applicable. See Coolidge v. New Hampshire, 403 U. S. 443, 465 (1971). [5] Nor can it reasonably be argued that the search was incident to arrest of the store clerk. Chimel v. California, 395 U. S. 752 (1969).

Ill

We have repeatedly said that a warrant authorized by a neutral and detached judicial officer is “a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime.’ Johnson v. United States, 333 U. S. 10, 14 (1948).” United States v. Chadwick, 433 U. S. 1, 9 (1977). See also Coolidge v. New Hampshire, supra, at 450. The State contends that the presence and participation of the Town Justice in the search ensured that no items would be seized absent probable cause to believe they were obscene, and that his presence enabled petitioner to enjoy an immediate adversary hearing on the issue.

The Town Justice did not manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure. Coolidge v. New Hampshire, supra, at 449. We need not question the[*327] subjective belief of the Town Justice in the propriety of his actions, but the objective facts of record manifest an erosion of whatever neutral and detached posture existed at the outset. He allowed himself to become a member, if not the leader, of the search party which was essentially a police operation. Once in the store, he conducted a generalized search under authority of an invalid warrant; he was not acting as a judicial officer but as an adjunct law enforcement officer. When he ordered an item seized because he believed it was obscene, he instructed the police officers to seize all “similar” items as well, leaving determination of what was “similar” to the officer’s discretion. Indeed, he yielded to the State Police even the completion of the general provision of the warrant. Though it would not have validated the warrant in any event, the Town Justice admitted at the hearing to suppress evidence that he could not verify that the inventory prepared by the police and presented to him late that evening accurately reflected what he had ordered seized.

We also cannot accept the State’s contention that it acted in compliance with Heller v. New York, 413 U. S. 483 (1973). There, based on police reports of probable violation of state law, a judge viewed a film in a theater as an ordinary paying patron; on the basis of his observation of the entire performance, he then issued a warrant for the seizure of the particular viewed film as evidence. There was no claim that seizure of the single copy impeded the exhibitor’s continued business pending decision on the issue of obscenity. Heller’s claim was that not even one of his films could be lawfully seized without a prior adversary hearing. We rejected that claim and held that seizure on the warrant so issued by a neutral judicial officer on probable cause after viewing one film was constitutionally permissible so long as, on request, a prompt adversary hearing was available on the issue of obscenity. “With such safeguards, we do not perceive that an adversary hearing prior to a seizure [of a single sample film] by lawful[*328] warrant would materially increase First Amendment protection.” Id., at 493. We also took pains to point out:

“Courts will scrutinize any large-scale seizure of books, films, or other materials presumptively protected under the First Amendment to be certain that the requirements of A Quantity of Books [v. Kansas, 378 U. S. 205 (1964),] and Marcus [v. Search Warrant, 367 U. S. 717 (1961),] are fully met. . . .
“But seizing 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.” Id., at 491-492.

In contrast, the local justice here undertook to telescope the processes of the application for a warrant, the issuance of the warrant, and its execution. It is difficult to discern when he was acting as a “neutral and detached” judicial officer and when he was one with the police and prosecutors in the executive seizure, and indeed even whether he thought he was conducting, ex parte, the “prompt” postseizure hearings on obscenity called for by Heller, supra, at 492. Heller does not permit the kind of activities revealed by this record. [6]

IV

Perhaps anticipating our disposition of the case, the State[*329] raises a different theory from the one advanced in its opposition to the petition for certiorari and on which it had relied in the state courts. The suggestion is that by virtue of its display of the items at issue to the general public in areas of its store open to them, petitioner had no legitimate expectation of privacy against governmental intrusion, see Rakas v. Illinois, 439 U. S. 128 (1978), and that accordingly no warrant was needed. But there is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to Fourth Amendment guarantees. See Lewis v. United States, 385 U. S. 206, 211 (1966). The Town Justice viewed the films, not as a customer, but without the payment a member of the public would be required to make. Similarly, in examining the books and in the manner of viewing the containers in which the films were packaged for sale, he was not seeing them as a customer would ordinarily see them.

Any suggestion that petitioner through its clerk consented to the sweeping search also comes too late. After Lo-Ji’s agent was placed under arrest and was aware of the presumed authority of the search warrant, his conduct complying with official requests cannot, on this record, be considered free and voluntary. Any “consent” given in the face of “colorably lawful coercion” cannot validate the illegal acts shown here. Bumper v. North Carolina, 391 U. S. 543, 549-550 (1968). Our society is better able to tolerate the admittedly pornographic business of petitioner than a return to the general warrant era; violations of law must be dealt with within the framework of constitutional guarantees.

The judgment of the Appellate Term of the Supreme Court of the State of New York for the Ninth and Tenth Judicial Districts is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

1

New York Penal Law § 235.00 (McKinney Supp. 1978-1979) is the definitional section of the State’s obscenity law. Petitioner was later charged with obscenity in the second degree, § 235.05. See n. 3, infra.

2

The State’s brief asserts approximately 474 films were taken, but from the inventory filed in the case it appears the number was 431.

3

New York Penal Law § 235.05 (McKinney Supp. 1978-1979) defines obscenity in the second degree as follows:

“A person is guilty of obscenity in the second degree when, knowing its content and character, he:
“1. Promotes, or possesses with intent to promote, any obscene material . . . .”

Section 235.00 of the Penal Law states:

“4. ‘Promote’ means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same.”
4

The clerk arrested at petitioner’s store entered a guilty plea to a[*325] charge of disorderly conduct for selling the two films to the State Police investigator. He did not appeal.

5

Of course, contraband may be seized without a warrant under the “plain view” doctrine. See, e. g., Ker v. California, 374 U. S. 23, 42-43 (1963). But we have recognized special constraints upon searches for and seizures of material arguably protected by the First Amendment, e. g., Heller v. New York, 413 U. S. 483 (1973); Marcus v. Search Warrant, 367 U. S. 717, 731-732 (1961); materials normally may not be seized on the basis of alleged obscenity without a warrant.

6

Wc do not suggest, of course, that a “neutral and detached magistrate/’ Shadwick v. Tampa, 407 U. S. 345, 350 (1972), loses his character as such merely because he leaves his regular office in order to make himself readily available to law enforcement officers who may wish to seek the issuance of warants by him. For example, in Heller, the judge signed the search warrant for the seizure of the film in the theater itself. But as we have just pointed out, Heller cannot control this case where the local Town Justice undertook not merely to issue a warrant, but to participate with the police and prosecutors in its execution.