Reconsideration on remand from the Supreme Court, 413 U.S. 919, 93 S. Ct. 3056, 37 L. Ed. 2d 1040 (1973), of G.I. Distributors, Inc. v. Murphy, 469 F.2d 752 (2d Cir. 1972), which held that the first amendment rights of plaintiff-appellee, G.I. Distributors, Inc., were not infringed when the police, while acting pursuant to search warrants authorizing the seizure of six copies of 56 magazines, imposed a temporary restraint on 19,000 additional copies of the magazines which they discovered during their search, until an adversary hearing could be held the following day.
Lumbard, Friendly and Feinberg, Circuit Judges. Feinberg, Circuit Judge (dissenting).
By an order dated June 25, 1973, the Supreme Court vacated the decision of this court in G.I. Distributors v. Murphy, 469 F.2d 752 (1972), and remanded the case to us for further consideration in light of its decisions in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), Kaplan v. California, 413 U.S. 115, 93 S. Ct. 2680, 37 L. Ed. 2d 492 (1973), United States v. Twelve 200-Ft. Reels of Super 8 mm. Film, 413 U.S. 123, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973), United States v. Orito, 413 U.S. 139, 93 S. Ct. 2674, 37 L. Ed. 2d 513 (1973), Heller v. New York, 413 U.S. 483, 93 S. Ct. 2789, 37 L. Ed. 2d 745 (1973), Roaden v. Kentucky, 413 U.S. 496, 93 S. Ct. 2796, 37 L. Ed. 2d 757 (1973), and Alexander v. Virginia, 413 U.S. 836, 93 S. Ct. 2803, 37 L. Ed. 2d 993 (1973). Having given careful consideration to these decisions, we conclude that they do not require us to alter our prior opinion.
In our earlier opinion, we held that G.I. Distributors' first amendment rights had not been violated when the police temporarily sequestered overnight 19,000 of the company's magazines until an adversary hearing could be held and a warrant obtained the following morning. We emphasized the unique facts of the case. Armed with search warrants authorizing seizure of six copies of 56 magazines*fn1 which allegedly were obscene, the police went to the warehouse of G.I. Distributors on January 6, 1972 and discovered the additional 19,000 copies of the publications sometime after 6 P.M. in the course of their search of the warehouse. Aware that these magazines might be destroyed or moved to a hiding place, they segregated the copies and stationed a guard on the premises overnight. As soon as possible the following morning, a full adversary hearing was held before Judge Moldow of the New York City Criminal Court. After examining samples of the magazines, he found probable cause to believe they were obscene and issued a search warrant authorizing the seizure of the 19,000 copies, which were then removed from the warehouse.*fn2
In arguing that the minimal prior restraint exercised by the police in this case was unconstitutional, G.I. Distributors relies principally on the Supreme Court's decisons in Heller v. New York and Roaden v. Kentucky, supra. We believe, however, that neither of these cases supports G.I. Distributors' contention. In Heller, the Court actually affirmed a decision of the New York Court of Appeals*fn3 which failed to find an infringement of first amendment rights, although an allegedly obscene film had been seized without a prior adversary hearing. Echoing the words of the Court of Appeals, the Supreme Court in Heller concluded that there is no absolute constitutional requirement of an adversary hearing prior to a seizure of a movie; a prompt judicial determination following the seizure will often be an adequate guarantee of first amendment rights.
The procedure followed by the police in the present case was in no way at odds with this holding. Within hours after the police came across the 19,000 magazines and set them aside, an adversary hearing was held at which Judge Moldow found probable cause to believe the publications were obscene. Nevertheless, G.I. Distributors argues that much of the language in Heller, if not its holding, requires us to reverse our earlier decision. In particular, it is urged that the Supreme Court condemned all pre-hearing seizures, except those in which a limited number of copies of the allegedly obscene materials are seized solely for evidentiary purposes. In our view, there is no basis for such a broad reading of Heller. Moreover, the pre-hearing sequestration which occurred here was such a temporary restraint that no real injury was done first amendment rights. At worst, G.I. Distributors was prevented from distributing its publications for a few hours on the morning of January 7, although even this is by no means certain since the record reveals no attempt at distribution by the company.
There is little similarity here with the massive prehearing seizures for the purpose of the permanent destruction of books which occurred in Quantity of Copies of Books v. Kansas, 378 U.S. 205, 12 L. Ed. 2d 809, 84 S. Ct. 1723 (1964) and Marcus v. Search Warrant of Property, 367 U.S. 717, 6 L. Ed. 2d 1127, 81 S. Ct. 1708 (1961). As we noted in our earlier decision:
Marcus involved an attempt to suppress allegedly obscene books by means of a vague search warrant which in effect allowed the police to seize anything that they deemed to be obscene. A Quantity of Books concerned the seizure of a large number of books under a statute which did not permit a hearing on the books' obscenity until at least 10 days after the seizure and did not require the judge to make a speedy decision after the hearing. Unlike these cases, no extended interruption in the public's access to the magazines nor long term suppression of possibly nonobscene literature was threatened here. 469 F.2d at 756.
But perhaps the most telling reason for not requiring a pre-seizure adversary hearing in cases such as the present one is the danger that, having been forewarned about the evidence the government is seeking, putative defendants may attempt to destroy, conceal, or otherwise dispose of this incriminating material. Indeed, as the Heller Court stated, in terms likewise applicable to the magazines at issue here:
Counsel for New York has argued that movie films tend to "disappear" if adversary hearings are afforded prior to seizure. We take judicial notice that such films may be compact, readily transported for exhibition in other jurisdiction, easily destructible, and particularly susceptible to alteration by cutting and splicing crucial parts of film. 413 U.S. 483, 93 S. Ct. 2789, 2795, 37 L. Ed. 2d 745 (1973).
G.I. Distributors also argues that Roaden v. Kentucky, supra, necessitates a reversal of our earlier decision. We disagree. Roaden involved a warrantless seizure of a film incident to the arrest of the manager of the drive-in theatre at which the film was being exhibited. Holding that the seizure was unconstitutional, the Supreme Court emphasized that there had been no prior probable cause determination by a judicial officer on the question of the obscenity of the movie. On the basis of this holding, it is urged here that the warrantless seizure of the 19,000 magazines by the New York City police was likewise unconstitutional. But in arguing that the language used in Roaden should be applied broadly to the present case, G.I. Distributors overlooks the Supreme Court's admonition in Roaden that each case must be determined on the basis of its particular facts. The fourth amendment is not to be read "in a vacuum. A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material." 413 U.S. 496, 93 S. Ct. 2796, 2800, 37 L. Ed. 2d 757 (1973).
The circumstances under which the magazines were seized in the present case differ markedly from those under which the seizure of film took place in Roaden. In the latter case the film seized was being shown at a commercial theatre during regularly scheduled performances to the general public. Without difficulty, the sheriff could have first obtained a warrant and then seized the movie. In contrast, the police here stumbled upon additional copies of obscene magazines in a warehouse at night and sought merely to preserve them until an adversary hearing could be held and a search warrant obtained the following morning, by which time the contraband might otherwise have been destroyed, concealed, or transferred out of the jurisdiction. Whatever the police action in this case be called, it was the most limited form of detention consistent with preventing removal of the magazines prior to getting a warrant the next morning. The police did not destroy the material, transport it, or apparently even interfere with the owners' access to it. They merely prevented the owners from moving the magazines for the period between the search and the adversary hearing the next morning. The courts have often advised police that when they have no warrant for a search or seizure, the proper course is to watch the item under suspicion in order to prevent it from being moved, during which time the search warrant can be obtained. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 465, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971); United States v. Marshall, 488 F.2d 1169, 14 Cr. L. Rep. 2030, 2032 (9th Cir. 1973). Essentially, that is what happened here. The police kept watch over the material pending the issuance of a warrant. Perhaps they could have gotten a warrant that night. Instead, they chose to get the warrant after the adversary hearing -- certainly a reasonable course to follow, since having a hearing before confiscating all the magazines would actually benefit the owners. The procedure followed here, in short, may be termed a "seizure," but if it is, it is the most limited form of seizure imaginable, and therefore should not be classified as one with warrantless seizures that "become in themselves a form of censorship." Heller v. New York, 93 S. Ct. 2787, 2793 (1973).
Moreover, the police had ample grounds for assuming that the 19,000 publications were, indeed, contraband. In contrast to Roaden, in which "the seizure proceeded solely on a police officer's conclusions that the film was obscene," in the present case all 19,000 magazines sequestered temporarily overnight were copies of publications which two judges had already found probable cause to believe were obscene and for which warrants had been issued.*fn4 Acting entirely on the basis of this judicial determination of obscenity, the police did not go any further than was absolutely necessary under the ...