The opinion of the court was delivered by: TYLER
This is a motion by defendant Robert Brown for an order under Rule 41(e) of the Federal Rules of Criminal Procedure directing suppression and return of 419 cartons of magazines and other materials alleged to be obscene. For reasons to be discussed hereinafter, defendant's motion is granted.
Brown is the sole owner of the Overstock Book Co., Inc. in midtown New York, where the seizure took place on June 23, 1967. The seizure was made pursuant to a search warrant issued by Commissioner Earle Bishopp on that day, ordering a search of the second and third floors of the building in which the company is located and the seizure of "16 cartons containing obscene books * * *" which were alleged to be the fruits of the crime of transporting obscene material in interstate commerce. 18 U.S.C. § 1462 (1964). The applicable warrant was supported by the sworn affidavit of a special agent of the FBI which set forth that:
1) a theretofore reliable informant had notified the FBI that a number of cartons of obscene books were located at JFK International Airport;
2) another FBI agent had observed the contents of 3 of the 16 cartons mentioned in the warrant and the affiant was advised by the FBI that the other agent had found the contents to be obscene books, pamphlets and pictures;
3) the airbill covering the carriage of the cartons showed that they had been transported in interstate commerce; and
4) observation and investigation had led the affiant to conclude that the cartons could be found at the indicated premises.
None of the contents of the cartons were submitted to the Commissioner for his perusal; thus, there was no judicial determination, preliminary or otherwise, of obscenity prior to issuance and execution of the operative warrant.
Armed with the search warrant, agents of the FBI proceeded to seize a total of 419 cartons of allegedly obscene material on the premises of the Overstock Book Co. and arrest the defendant. He was subsequently indicted on June 29, 1967 and charged with transporting 16 cartons of obscene material in interstate commerce in violation of Sections 1465 and 1462 of Title 18 of the United States Code. Defendant has pleaded not guilty to this indictment.
At the threshold, defendant is faced with the government's contention that he has no standing to suppress under Rule 41(e). Relief under this rule is available only to a "person aggrieved" by the search. To be such a person, one is required to have a recognizable interest in the property seized or the premises searched. This requirement could be met if the movant was "legitimately on the premises where [the] search" occurred. Jones v. United States, 362 U.S. 257, 267, 80 S. Ct. 725, 734, 4 L. Ed. 2d 697 (1960), but the affidavits of the parties conflict on this point. This factual dispute need not be resolved, however, since the defendant properly comes within the ambit of the protection afforded to those with a recognizable interest in property seized.
In United States ex rel. DeForte v. Mancusi, 379 F.2d 897 (2d Cir. 1967), the Second Circuit ruled that a union vice-president had standing to object to the seizure of union books, holding he was the "victim" of the search, the "one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search and seizure directed at someone else." Id. at 903. The court explained that
"the allegedly improper activities which the state was attempting to curtail could be halted only by prosecuting DeForte and his fellow union officials. Little would have been gained by prosecuting or fining the union alone, or even driving it to extinction, for the guiding culprits would have remained free to conduct their illegal activities through a different proscenium." Id. at 902.
Though the Second Circuit went on to caution that its standing rule did not apply to "every stockholder, or employee" Id. at 905, it seems plain that it does apply to the sole owner of a corporation. It was Brown, the corporate owner, against whom the search here was directed; therefore, he has standing to contest the legality of the search.
The government's main contention on the merits is that the seizure was made pursuant to a valid search warrant. Alternatively, they contend that it was made incident to a lawful arrest. Were this a typical case of a seizure of contraband, I would assume arguendo that it could be sustained on either ground. See United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); United States v. Beigel, 254 F. Supp. 923 (S.D.N.Y.1966), aff'd, 370 F.2d 751 (2d Cir. 1967). But alleged obscentity cannot be treated as mere contraband. Marcus v. Search Warrant, 367 U.S. 717, 730-31, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961); A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 211-12, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964). "(The) line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, ...