Cluster 108853

First, neither Heller nor Fort Wayne Books states affirmatively that seizing multiple copies of an item without a prior judicial proceeding is unconstitutional.Heller, 413 U.S. at 492 n.8 (questioning the need to seize multiple copies of a film as purely cumulative evidence); Fort Wayne Books, 489 U.S. at 63 , quoting Heller, 413 U.S. at 492 ("While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the p…

See Heller v. New York, 413 U.S. 483, 491 , 93 S.Ct. 2789, 2794 , 37 L.Ed.2d 745 (1973) (“ ‘Any system of prior restraints of expression comes to *1198 this Court bearing a heavy presumption against its constitutional validity’ ”) (citing numerous cases); accord Nebraska Press Ass ’n. v. Stuart, 427 U.S. 539, 545 , 96 S.Ct. 2791, 2796 , 49 L.Ed.2d 683 (1976); see also Bertot v. School Dist.

Video, Inc., 475 U.S. 868, 873 (1989); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 , 326 n. 5 (1979); Heller v. New York, 413 U.S. 483, 492-93 (1973); Roaden v. Kentucky, 413 U.S. 496, 506 (1973); Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 210-12 (1964); Marcus v. Search Warrants of Prop. at 104 E.

In Marcus , the use of an ex parte hearing to secure search warrants was only one of many problems with the Missouri procedure which culminated in the ruling that the appellants’ due process rights were violated. ( Marcus, supra, 367 U.S. at pp. 731-733.) Indeed, in a subsequent case in which Marcus was distinguished, the Supreme Court clarified that “[tjhis Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior advers…

The Cady Court took pains to define community caretaking functions as being “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” 413 U.S. at 441, 93 S.Ct. 2523 .

Heller v. New York, 413 U.S. 483, 488 (1973).

See, e.g., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989) (recognizing the risk of prior restraint); see also Roaden v. Kentucky, 413 U.S. 496, 501 (1973) (holding that seizure of expressive materials in some instances requires additional safeguards); Heller v. New York, 413 U.S. 483, 491-92 (1973); Huffman v. United States, 470 F.2d 386, 392 (D.C.

The Supreme Court articulated that distinction in Heller v. New York, 413 U.S. 483, 492 , 93 S.Ct. 2789, 2794-95 , 37 L.Ed.2d 745, 754 (1973).

By ‘prompt’ we mean the shortest period compatible with sound judicial resolution____ 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, with only a minimal interference with public circulation pending litigation. 413 …

That is why, as cases such as Zurcher v. Stanford Daily, 436 U.S. 547, 563-67 [ 98 S.Ct. 1970, 1980-82 , 56 L.Ed.2d 525 ] (1978); Heller v. New York, 413 U.S. 483, 488-93 [ 93 S.Ct. 2789, 2792-95 , 37 L.Ed.2d 745 ] (1973); Branzburg v. Hayes, 408 U.S. 665, 693-95 [ 92 S.Ct. 2646, 2662-63 , 33 L.Ed.2d 626 ] (1972); Reporters Comm. for Freedom of Press v. American Tel. & Tel.

The United States Supreme Court, in Fort Wayne Books v. Indiana stated: Most importantly, in Heller v. New York, 413 U.S. 483, 492 [ 93 S.Ct. 2789, 2794 , 37 L.Ed.2d 745 ] (1973), the Court noted that “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” ...

(Cf. Heller v. New York (1973) 413 U.S. 483, 492-493 [ 37 L.Ed.2d 745, 754 , 93 S.Ct. 2789 ].) 7 At the hearing on the preliminary injunction, appellants failed to submit an actual draft of a preliminary injunction that would pass this gamut of difficult issues.

Most importantly, in Heller v. New York, 413 U. S. 483, 492 (1973), the Court noted that “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.” As a result, we concluded that until there was a “judicial determination of the obscenity issue in an adversary proceeding,” exhibition of a film could not be restraine…

"This Court has never held, nor even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized." Heller v. New York, 413 U.S. 483, 448 , 93 S.Ct. 2789, 2792 , 37 L.Ed.2d 745, 751 (1973).

Heller v. New York, 413 U.S. 483, 488 , 37 L.Ed. 2d 745, 751 , 93 S.Ct. 2789, 2792 (1973).

Heller, 413 U.S. at 488, 492-493 , 93 S.Ct. at 2793, 2795 .

Id. at 492 (footnote omitted).

“In short . . . the constitutional re quirement 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.” Stanford v. Texas, 379 U. S. 476, 485 (85 SC 506, 13 LE2d 431). “ ‘Any system of prior restraints of expression comes to the [the U. S. Supreme] Court bearing a heavy presumption against its constitutional validity.’ ” H…

As the Court in Heller noted, “prompt judicial determination” means the “shortest period ‘compatible with sound judicial resolution’.” Heller at 492, n. 9, 93 S.Ct. at 2795, n. 9 .

Nothing prior to seizure afforded a magistrate an opportunity to ‘focus searchingly on the question of obscenity.’ See Heller v. New York, ante, [ 413 U.S. 483 at 488-489 [ 93 S.Ct. 2789 at 2792-2793 , 37 L.Ed.2d 745 (1973) ]; Marcus v. Search Warrant, 367 U.S. at 732 [ 81 S.Ct. at 1716 ].

The procedure for determining probable cause must afford an opportunity for the judicial officer to “focus search - ingly on the question of obscenity.” Marcus v. Search Warrant, supra, at 732 ; A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964); Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968); Roaden v. Kentucky, supra, at 502 ; Heller v. New York, 413 U.S. 483, 489 (1973).

Heller v. New York, 413 U.S. 483, 488-89 (1973).

“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 Copies of Books v. Kansas, 378 U.S. 205 (1964)] and [Marcus v. Search Warrant, 367 U.S. 717 (1961)] are fully met.” Heller v. New York, 413 U.S. 483, 491-492 (1973).

Id. at 490, 93 S.Ct. at 2793 (citations omitted) (emphasis added). [Sjeizing 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.

The procedure used by New York in this case provides such First Amendment safeguards, while also serving the public interest in full and fair prosecution for obscenity offenses.” 413 U.S. at 492-93 , 93 S.Ct. at 2794-95 , 37 L.Ed.2d at 754-55 [citations omitted; emphasis added].

It has expressly declined to hold that a magistrate must personally view a film before issuing a warrant to seize it, id.; Heller v. New York, 413 U.S. 483, 488 , 93 S.Ct. 2789, 2792 , 37 L.Ed.2d 745 (1973), stating instead only the general rule that if “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 is available at the request of any…

In the present case, the seizure of all six cartons of films may arguably have exceeded the requirements of law enforcement officials seeking evidence to pursue criminal charges. “(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 s…

The procedure for determining probable cause must afford an opportunity for the judicial officer to “focus searchingly on the question of obscenity.” Marcus v. Search Warrant, supra, at 732 ; A Quantity of Books v. Kansas, 378 U. S. 205, 210 (1964); Lee Art Theatre, Inc. v. Virginia, 392 U. S. 636, 637 (1968); Roaden v. Kentucky, supra, at 502 ; Heller v. New York, 413 U. S. 483, 489 (1973).

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, with only *168 a minimal interference with public circulation pending litigation. . ." 413 U.S. 483, 488, 489-90, 491-93 , 93 S.Ct. 2789, 2792, 2793, 2794-95 , 37 L.Ed…

Cf. Heller v. New York, 413 U.S. at 490-91, 93 S.Ct. at 2794 .

Consequently, wholly apart from the question whether the People are precluded by the doctrine of collateral estoppel from relitigating the issue of obscenity, petitioners are entitled to have the seized materials restored to them. 8 A *629 contrary holding would, in the words of the United States Supreme Court, allow temporary restraint in itself to “become a form of censorship.” (Cf. Heller v. New York, supra, 413 U.S. 483, 490 [ 37 L.Ed.2d 745, 753 , 93 S.Ct. 2789 ]; Unite…

While there can be no doubt under our cases that obscene materials are beyond the protection of the First Amendment, Roth *674 v. United States, 354 U. S. 476 (1957); Miller v. California, 413 U. S. 15 (1973); those decisions have also consistently recognized that the procedures by which a State ascertains whether certain materials are obscene must be ones which ensure "the necessary sensitivity to freedom of expression," Freedman v. Maryland, 380 U. S. 51, 58 (1965); Heller…

The court rejected a First Amendment prior-restraint claim, referring to the obscene books as "contraband" and noting that this Court had allowed interim relief to the States in obscenity cases in order to "prevent frustration of judicial condemnation of obscene matter." Later decisions of this Court, e. g., A Quantity of Books v. Kansas, 378 U. S. 205 (1964), have undermined Aday insofar as it permits the State, absent a prior adversary hearing, to block the "distribution o…

This requirement was limited to cases involving "the seizure of large quantities of books for the sole purpose of their destruction" in Heller v. New York (1973) 413 U.S. 483, 491 [ 37 L.Ed.2d 745, 753 , 93 S.Ct. 2789 ]. [4] In a per curiam opinion the Supreme Court in Lee Art Theatre invalidated a warrant issued on the basis of the officer's affidavit stating only the titles of the films and that the officer had determined from personal observation of them and of the billbo…

We take judicial notice that such films may be compact, readily transported for exhibition in other jurisdiction, easily destructible, and particularly susceptible to alteration by cutting and splicing crucial parts of film. 93 S.Ct. 2789, 2795 (1973). 9 G.I.

Moreover, in Heller v. New York, 413 U.S. 483, 488 (1973), the Supreme Court said that there is no “absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized.” Under the Virginia procedure [§ 18.1-236.3], upon the filing of the petition alleging the obscene nature of a book, “the court in term or in vacation shall forthwith examine the book alleged to be obscene.” Next, the trial court shall d…

Moreover, as emphasized in Heller v. New York, supra, 413 U.S. at 491, 93 S.Ct. at 2794 n. 7 & 2795 (1973), the sei zures here were not made for the purpose of destruction nor for the purpose of blocking the public from viewing commercial films or reading or purchasing books openly displayed, but rather to preserve evidence for a criminal prosecution.

We take judicial notice that such films may be compact, readily transported for exhibition in other jurisdiction, easily destructible, and particularly susceptible to alteration by cutting and splicing crucial parts of film. 93 S.Ct. 2789, 2795 (1973).

In particular, there is no such absolute right where allegedly obscene material is seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution. * * *." (413 U.S. at 433, 93 S.Ct. at 2792, 37 L.Ed.2d at 751). "[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 w…

In particular, there is no such absolute right where allegedly obscene material is seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution. * * (413 U.S. at 433, 93 S.Ct. at 2792, 37 L.Ed.2d at 751). “[Sjeizing 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…

Similar dispositions were made in Kaplan (413 U.S. at p. 122 [37 L.Ed.2d at p. 499]); Heller ( 413 U.S. at p. 494 [37 L.Ed.2d at p. 755]) and Alexander (413 U.S. at p. 836 [37 L.Ed.2d at p. 994]).

See Heller v. New York, 413 U.S. 483, 492 (1973) (recognizing that “seizing a single copy of a film” may serve “the 16 Appellate Case: 21-2052 Document: 010110718978 Date Filed: 08/02/2022 Page: 17 bona fide purpose of preserving it as evidence in a criminal proceeding”).

Search warrant applications are usually based “on an ex parte application—by definition not litigated by the parties in the adversarial sense at all” (People v Bilsky, 95 NY2d 172, 176 [2000]; see Heller v New York, 413 US 483 [1973]).

See id. at 63 , 109 S.Ct. 916 (“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”) (quoting Heller v. New York, 413 U.S. 483, 492 , 93 S.Ct. 2789 , 37 L.Ed.2d 745 (1973)).

See Heller v. New York, 413 U.S. 483, 492 , 93 S.Ct. 2789 , 37 L.Ed.2d 745 (1973); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 , 109 S.Ct. 916 , 103 L.Ed.2d 34 (1989) (“[A] single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause.”).

See Cady v. Dombrowski, 413 U.S. 483, 441 , 93 S.Ct. 2523, 2528 , 37 L.Ed.2d 706 (1973) (observing that police frequently perform “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to' the violation of a criminal statute”).

See id. at 490 ; see also New York v. P.J.

See Cady v. Dombrowski, 413 U.S. 483 , 93 S.Ct. 2523 , 37 L.Ed.2d 706 (1973).

See Heller v. New York, 413 U.S. 483, 489-90 , 93 S.Ct. 2789, 2793 , 37 L.Ed.2d 745 (1973).

See id., 413 U.S. at 490-91, 93 S.Ct. at 2793-94 (“In this case, the barrier to a prompt judicial determination of the obscenity issue in an adversary proceeding was not the State, but petitioner’s decision to waive pre-trial motions and reserve the obscenity issue for trial”).