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UNITED STATES v. MANARITE

June 30, 1970

UNITED STATES of America,
v.
Samuel F. MANARITE et al., Defendants


MacMahon, District Judge.


The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

Fifteen defendants are charged in a thirteen-count indictment with transporting obscene material in interstate commerce (18 U.S.C. § 1465), with aiding and abetting the transportation of obscene material in interstate commerce (18 U.S.C. § 2), and with conspiring to transport obscene material in interstate commerce (18 U.S.C. § 371).

 Four defendants move to suppress evidence allegedly seized in violation of their constitutional rights. An evidentiary hearing was held on April 9, 1970. We will consider first defendants Wolf and Bornstein's motions to suppress.

 I. Wolf and Bornstein's Motions to Suppress

 Defendants Wolf and Bornstein challenge the constitutionality of seizures from defendant James Kelly's book store in Baltimore, Maryland, on June 25, 1969, and from Bornstein's truck and apparently from Richard Portela's car, from Carol Portela's person and from James Kelly's car, in Baltimore, Maryland, on July 12, 1969.

 A. Seizures from Kelly's Book Store

 Baltimore city detectives, on June 25, 1969 acting pursuant to a search warrant, seized from a book store owned by defendant James Kelly, 48 magazines, 16 rolls of film, 67 packages of photographs and 4 decks of playing cards. *fn1"

 Defendants Wolf and Bornstein claim that the warrant authorizing this seizure did not sufficiently particularize the "obscene" material to be seized and that an adversary hearing was not held prior to seizing the material.

 The requirement of particularity for a warrant authorizing the seizure of obscene material is a necessary protection for, and a corollary of, the Fourth Amendment's guarantee of freedom from unreasonable search and seizure and the First Amendment's right of free speech. The remedy for violation is suppression of any evidence seized as a result of the violation. *fn2"

 The requirement of an adversary hearing prior to seizing allegedly obscene material is completely derived from the First Amendment's right of free speech. *fn3" The remedy for violation of this requirement is not suppression but rather return of the seized material, *fn4" and defendants' motions to suppress on this ground are, therefore, improper.

 The motions, however, are deficient on both First and Fourth Amendment grounds for an even more fundamental reason.

 The First and Fourth Amendment rights allegedly violated by this seizure are personal rights. Only the actual victim of an invasion of these rights has standing to move to suppress. *fn5" This simply means that a defendant moving to suppress evidence on either of these two grounds must demonstrate that his own personal right to be free from an unreasonable search and seizure or his own personal right to free speech was violated.

 Here, the material was seized from a book store owned by James Kelly. There is no evidence, nor is there even an allegation, that defendants Wolf or Bornstein had or have any proprietary interest in the book store or in the items seized.

 Since the seizure did not invade defendants' rights of "privacy of person or premises," they lack standing on Fourth Amendment grounds to move to suppress this evidence. *fn6"

 Defendants also lack standing to move to suppress on First Amendment grounds.

 The general requirement of particularity in warrants is more strictly applied in situations involving the seizure of materials which arguably fall within the First Amendment's protection of free expression. *fn7" This is necessary to guard against an executing officer's seizing "protected expression," if he is not given some guidelines to direct his exercise of discretion.

 Similarly, an adversary hearing is necessary prior to a "massive" seizure of material containing "speech" in order to protect against an interference, albeit temporary, with "protected expression." *fn8"

 But, once again, as in the case of Fourth Amendment rights, only those persons who are victims of governmental interference with the right of free speech have standing to move for suppression.

 Neither Wolf nor Bornstein were, however, exercising their right of free speech through the seized material. Their right to express themselves was in no sense invaded by this seizure. *fn9"

 Wolf and Bornstein's motion to suppress the evidence seized at Kelly's book store on June 25, 1969 is, therefore, denied.

 B. The Arrests and Seizures on July 12, 1969

 Wolf and Bornstein also move to suppress evidence seized on July 12, 1969 from Bornstein's truck, from Richard Portela's car, from Carol Ann ...


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