William J. Brennan, Jr.

“ However, the judge or magistrate issuing the warrant must fix a date, not less than five nor more than 20 days after the seizure, for a hearing to determine whether the seized material is obscene. [4] The owner of the material may appear at such hearing and defend against the charge. [5] No time limit is provided within which the judge must announce his decision. If the judge finds that the material is obscene, he is required to order it to be publicly destroyed, by burning or otherwise; if he finds that it is not obscene, he shall order its return to its owner. ”

“ We have no occasion to reach the question of the correctness of the finding that the publications are obscene. Nor is it necessary for us to decide in this case whether Missouri lacks all power under its statutory scheme to seize and condemn obscene material. Since a violation of the Fourteenth Amendment infected the proceedings, in order to vindicate appellants' constitutional rights the judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. ”

“ Putting to one side the fact that no opportunity was afforded the appellants to elicit and contest the reasons for the officer's belief, or otherwise to argue against the propriety of the seizure to the issuing judge, still the warrants issued on the strength of the conclusory assertions of a single police officer, without any scrutiny by the judge of any materials considered by the complainant to be obscene. ”

“ If the complainant states "positively and not upon information or belief," or states "evidential facts from which such judge or magistrate determines the existence of probable cause" to believe that obscene material "is being held or kept in any place or in any building," "such judge or magistrate shall issue a search warrant directed to any peace officer commanding him to search the place therein described and to seize and bring before such judge or magistrate the personal property therein described.' [3] The owner of the property is not afforded a hearing before the warrant issues ”

“ During the political overturn of the 1640's Parliament on several occasions asserted the necessity of a broad search and seizure power to control printing. Thus an order of 1648 gave power to the searchers "to search in any house or place where there is just cause of suspicion, that Presses are kept and employed in the printing of Scandalous and lying Pamphlets, * * * [and] to seize such scandalous and lying pamphlets as they find upon search * * *." [16] The Restoration brought a new licensing act in 1662. ”

“ See 23 Mod.L.Rev. 285.↑ The feasibility of particularization in complaint and warrant in a case such as the present is apparent, since the publications were sold on newsstands distributing to the public. Compare Lord Camden's remark in Entick v. Carrington, directed to the contention that a general warrant might be justifiable as a means of uncovering evidence of crime: "If * * * a right of search for the sake of discovering evidence ought in any case to be allowed, this crime (seditious libel) above all others ought to be excepted, as wanting such a discovery less than any other. ”

“ The warrants gave the broadest discretion to the executing officers; they merely repeated the language of the statute and the complaints, specified no publications, and left to the individual judgment of each of the many police officers involved the selection of such magazines as in his view constituted "obscene * * * publications." So far as appears from the record, none of the officers except Lieutenant Coughlin had previously examined any of the publications which were subsequently seized. ”

“ There is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller. ”

“ Lieutenant Coughlin with two other Kansas City police officers, and an officer of the Jackson County Sheriff's Patrol, executed the warrant against Distributors. Distributors' stock of magazines runs "into hundreds of thousands * * * [p] robably closer to a million copies." The officers examined the publications in the stock on the main floor of the establishment, not confining themselves to Lieutenant Coughlin's original list. They seized all magazines which " [i] n our judgment" were obscene; when an officer thought "a magazine * * * ought to be picked up" he seized all copies of it. ”

“ The circuit judge fixed October 17 for the hearing, which was later continued to October 23. Timely motions were made by the appellants to quash the search warrants and to suppress as evidence the property seized, and for the immediate return of the property. The motions were rested on a number of grounds but we are concerned only with the challenge to the application of the procedures in the context of h e protections for free speech and press assured against state abridgement by the Fourteenth Amendment. ”

“ It is plain that in many instances, if not in all, each officer actually made ad hoc decisions on the spot and, gauged by the number of publications seized and the time spent in executing the warrants, each decision was made with little opportunity for reflection and deliberation. ”

“ Appellant, Kansas City News Distributors, managed by appellant, Homer Smay, is a wholesale distributor of magazines, newspapers and books in the Kansas City area. The other appellants operate five retail newsstands in Kansas City. In October 1957, Police Lieutenant Coughlin of the Kansas City Police Department Vice Squad was conducting an investigation into the distribution of allegedly obscene magazines. ”

“ If it appears that it may be necessary to use such articles or property as evidence in any criminal prosecution, the judge or magistrate shall order the officer having possession of them to retain such possessionu ntil such necessity no longer exists, and they shall neither be destroyed nor returned to the owner until they are no longer needed as such evidence. ”

“ On October 8, 1957, he visited Distributors' place of business and showed Smay a list of magazines. Smay admitted that his company distributed all but one of the magazines on the list. The following day, October 9, Lieutenant Coughlin visited the five newsstands and purchased one magazine at each. [7] On October 10 the officer signed and filed six sworn complaints in the Circuit Court of Jackson County, stating in each complaint that "of his own knowledge" the appellant named therein, at its stated place of business, "kept for the purpose of (sale) * * * obscene * * * publications * * *." ”

“ Second, the restraints in Kingsley Books, both temporary and permanent, ran only against the named publication; no catchall restraint against the distribution of all "obscene" material was imposed on the defendants there, comparable to the warrants here which authorized a mass seizure and the removal of a broad range of items from circulation. ”

“ It is committed in open daylight, and in the face of the world; * * *." 19 How.St.Tr., at 1074.↑ The trial judge in Kingsley Books refused to enjoin the distribution of future issues of the publication in question, stating: " [u] nless the work be before the court at the time of the hearing at which the injunction is sought, it is inappropriate to make a judicial determination with respect to it. ”