CERTIORARI TO THE COURT OF APPEALS OF NEW YORK.
Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 494. Brennan, J., filed a dissenting opinion, in which Stewart and Marshall, JJ., joined, post, p. 494.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in this case to determine whether a judicial officer authorized to issue warrants, who has viewed a film and finds it to be obscene, can issue a constitutionally valid warrant for the film's seizure as evidence in a prosecution against the exhibitor, without first conducting an adversary hearing on the issue of probable obscenity.
Petitioner was manager of a commercial movie theater in the Greenwich Village area of New York City. On July 29, 1969, a film called "Blue Movie" was exhibited there. The film depicts a nude couple engaged in ultimate sexual acts. Three police officers saw part of the film. Apparently on the basis of their observations, an assistant district attorney of New York County requested a judge of the New York Criminal Court to see a performance. On July 31, 1969, the judge, accompanied by a police inspector, purchased a ticket and saw the entire film. There were about 100 other persons in the audience. Neither the judge nor the police inspector recalled any signs restricting admission to adults.*fn1
At the end of the film, the judge, without any discussions with the police inspector, signed a search warrant for the seizure of the film and three "John Doe" warrants for the arrest of the theater manager, the projectionist, and the ticket taker, respectively. No one at the theater was notified or consulted prior to the issuance of the warrants. The judge signed the warrants because "it was, and is my opinion that that film is obscene, and was obscene as I saw it then under the definition of obscene, that is [in] . . . section 235.00 of the Penal Law." Exhibition of an obscene film violates New York Penal Law § 235.05.*fn2
The warrants were immediately executed by police officers. Three reels, composing a single copy of the film, were seized. Petitioner, the theater manager, was arrested, as were the projectionist and the ticket taker.*fn3 No pretrial motion was made for the return of the film or for its suppression as evidence. Nor did petitioner make a pretrial claim that seizure of the film prevented its exhibition by use of another copy, and the record does not conclusively indicate whether such a copy was available. On September 16, 1969, 47 days after his arrest and the seizure of the movie, petitioner came to trial, a jury having been waived, before three judges of the New York City Criminal Court.
At trial, the prosecution's case rested almost solely on testimony concerning the arrests and the seizure of the film, together with the introduction into evidence of the seized film itself. The film was exhibited to the trial judges. The defense offered three "expert" witnesses: an author, a professor of sociology, and a newspaper writer. These witnesses testified that the film had social, literary, and artistic importance in illustrating "a growing and important point of view about sexual behavior" as well as providing observations "about the political and social situation in this country today. . . ." Petitioner testified that the theater's employees were instructed not to admit persons who appeared to be under 18 years of age, unless they "had identification" that they were 18. Petitioner also testified that there was a sign at the box office stating that "no one under 17 [would be] admitted." Both at the end of the prosecution's case and his own case, petitioner moved to dismiss the indictment on the ground that the seizure of the film, without a prior adversary hearing, violated the Fourteenth Amendment.
At the close of trial on September 17, 1969, petitioner was found guilty by all three judges of violating New York Penal Law § 235.05. On appeal, both the Supreme Court of the State of New York, Appellate Term, and the Court of Appeals of the State of New York viewed the film and affirmed petitioner's conviction. The Court of Appeals, relying on this Court's opinion in Lee Art Theatre v. Virginia, 392 U.S. 636, 637 (1968), held that an adversary hearing was not required prior to seizure of the film, and that the judicial determination which occurred prior to seizure in this case was ...