Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979)

Lo-Ji Sales, Inc. v. New York

No. 78-511

Argued April 16, 1979
Decided June 11, 1979
442 U.S. 319

CERTIORARI TO THE APPELLATE TERM, SUPREME COURT OF NEW

YORK, NINTH AND TENTH JUDICIAL DISTRICTS

Syllabus

A New York State Police investigator, after purchasing two films from petitioner’s "adult" bookstore and after viewing them and concluding that they violated state obscenity laws, took the films to a Town Justice, who also viewed the films. Based on the investigator’s affidavit, the justice issued a warrant authorizing the search of the store and the seizure of other copies of the two films. The investigator’s affidavit also asserted that "similar" films and printed matter portraying similar activities could be found on the premises, and requested that the justice accompany the investigator in executing the warrant so that the justice might determine independently if any other items at the store were possessed in violation of law and subject to seizure. The justice included in the warrant a recital that authorized the seizure of "[t]he following items which the Court independently [on examination] has determined to be possessed in violation" of law. However, at the time the justice signed the warrant, no items were listed or described following this statement. The justice also signed a warrant for the arrest of the store clerk for having sold the two films to the investigator. Thereafter, the justice, the investigator, and nine other law enforcement officials entered the bookstore, arrested the clerk (the only employee present), and advised him of the search warrant; they conducted a search that lasted nearly six hours, covering various areas of the store, and examined and seized numerous films, projectors, and magazines. The seized items were inventoried at a State Police barracks, and each item was then listed by the police on the search warrant. Petitioner was charged with obscenity in the second degree. The trial court denied petitioner’s pretrial motion to suppress the evidence as having been searched for and seized in violation of the First, Fourth, and Fourteenth Amendments; petitioner then entered a guilty plea. As permitted by New York law, petitioner appealed the denial of the motion to suppress, and the convictions were affirmed.

Held:

1. The Fourth Amendment does not permit the action taken here, where, except for the specification of copies of the two films previously purchased by the investigator, the warrant did not purport to particularly describe the things to be seized but, instead, 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 countenance open-ended warrants to be completed while a search is being conducted and items seized, or after the seizure has been carried out. Pp. 325-326.

2. The Town Justice’s presence and participation in the search did not ensure that no items would be seized absent probable cause to believe that they were obscene; nor did his presence provide an immediate adversary hearing on the issue. The justice conducted a generalized search, and was not acting as a neutral and detached judicial officer. This procedure is not authorized by Heller v. New York, 413 U.S. 483. Here, the Town Justice undertook to telescope the processes of the application for a warrant, the issuance of the warrant, and its execution. Pp. 326-328.

3. The actions involved here cannot be justified on the theory that, because the items at issue were displayed in areas of the store open to the general public, petitioner had no legitimate expectation of privacy against governmental intrusion and warrantless search. Merely because a retail store invites the public to enter, it does not consent to wholesale searches and seizures that do not conform to Fourth Amendment guarantees. The actions involved cannot be sustained on the ground that petitioner’s clerk consented to the sweeping search. After the clerk was under arrest and aware of the presumed authority of the search warrant, his conduct complying with official requests cannot, on this record, be considered voluntary. Pp. 328-329.

Reversed and remanded.

BURGER, C.J., delivered the opinion for a unanimous Court.