From Casetext: Smarter Legal Research

Lee Art Theatre v. Virginia

U.S.
Jun 17, 1968
392 U.S. 636 (1968)

Summary

holding that an affidavit that merely stated the officer's belief that movies and books to be seized were obscene, and therefore illegal, was insufficient to establish probable cause

Summary of this case from Millender v. Cty. of Los Angeles

Opinion

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA.

No. 997.

Decided June 17, 1968.

Admission in evidence of allegedly obscene motion picture films seized under the authority of a warrant issued by a justice of the peace on a police officer's affidavit giving the films' titles, and stating that he had determined from personal observation of the films and of the theatre's billboard that they were obscene, was erroneous, as the issuance of the warrant without the justice of the peace's inquiry into the factual basis for the officer's conclusions fell short of constitutional requirements demanding necessary sensitivity to freedom of expression.

Certiorari granted; judgment reversed and remanded.

Plato Cacheris for petitioner.

James B. Wilkinson for respondent.


The petition for a writ of certiorari is granted. Petitioner, operator of a motion picture theatre in Richmond, Virginia, was convicted in the Hustings Court of Richmond of possessing and exhibiting lewd and obscene motion pictures in violation of Title 18.1-228 of the Code of Virginia. The Supreme Court of Appeals of Virginia refused a writ of error.

The films in question were admitted in evidence over objection that they had been unconstitutionally seized. The seizure was under the authority of a warrant issued by a justice of the peace on the basis of an affidavit of a police officer which stated only the titles of the motion pictures and that the officer had determined from personal observation of them and of the billboard in front of the theatre that the films were obscene.

The admission of the films in evidence requires reversal of petitioner's conviction. A seizure of allegedly obscene books on the authority of a warrant "issued on the strength of the conclusory assertions of a single police officer, without any scrutiny by the judge of any materials considered . . . obscene," was held to be an unconstitutional seizure in Marcus v. Search Warrant, 367 U.S. 717, 731-732. It is true that a judge may read a copy of a book in courtroom or chambers but not as easily arrange to see a motion picture there. However, we need not decide in this case whether the justice of the peace should have viewed the motion picture before issuing the warrant. The procedure under which the warrant issued solely upon the conclusory assertions of the police officer without any inquiry by the justice of the peace into the factual basis for the officer's conclusions was not a procedure "designed to focus searchingly on the question of obscenity," id., at 732, and therefore fell short of constitutional requirements demanding necessary sensitivity to freedom of expression. See Freedman v. Maryland, 380 U.S. 51, 58-59.

The judgment of the Supreme Court of Appeals of Virginia is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE STEWART base their concurrence in the judgment of reversal upon Redrup v. New York, 386 U.S. 767.


A police officer filed a sworn affidavit that he had personally witnessed the commission of a crime, to wit, the possession and exhibition of obscene motion pictures. He was granted a warrant to seize the pictures, and did so.

In Marcus v. Search Warrant, 367 U.S. 717, officers were given a general warrant to seize obscene materials, pursuant to which they selected and seized 11,000 copies of 280 publications most of which were later found nonobscene. With barely a nod to the difference between 11,000 books and magazines selected for seizure by the officers themselves after a warrant had been issued and two obscene movies named in the affidavit, the Court reverses the present conviction on the authority of Marcus.

I think that Marcus was correctly decided, but I cannot discern its application here. Police officers may not be given carte blanche to seize, but they may certainly seize a specifically named item on probable cause, before the work "taken as a whole" has been adjudicated obscene. Any other rule would make adjudication not merely "not as easily arrange[d]" in the case of movies but quite impossible. If the Court means only that the officer should not merely say that he has seen a movie and considers it obscene, but should offer something in the way of a box score of what transpires therein, I consider it absurd to think that a magistrate, armed with the luminous guidance this Court has afforded, will be thus able to make a better judgment of probable obscenity.

Since the petitioner does not contend that the movies in question here were not obscene, I find it unnecessary to reach the point relied on by my Brothers BLACK, DOUGLAS, and STEWART.


Summaries of

Lee Art Theatre v. Virginia

U.S.
Jun 17, 1968
392 U.S. 636 (1968)

holding that an affidavit that merely stated the officer's belief that movies and books to be seized were obscene, and therefore illegal, was insufficient to establish probable cause

Summary of this case from Millender v. Cty. of Los Angeles

In Lee Art Theatre v. Virginia, supra, the Court went so far as to suggest that it was an open question whether a judge need "have viewed the motion picture before issuing the warrant.

Summary of this case from Heller v. New York

In Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), a conviction for possessing and exhibiting lewd and obscene motion pictures was reversed because the films had been unconstitutionally seized.

Summary of this case from Abell v. Raines

In Lee Art Theatre v. Virginia, supra [ 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968)] the Court went so far as to suggest that it was an open question whether a judge need "have viewed the motion picture before issuing the warrant."

Summary of this case from United States v. Christian

In Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), the Court specifically left open the question of whether a judge must view the film before issuing a warrant for its seizure.

Summary of this case from United States v. Sherpix, Inc.

In Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), the Supreme Court ruled that probable cause was not established by a police officer's affidavit supplying only the titles of the allegedly obscene motion pictures to be seized and the officer's personal observation of the billboards in front of the theater.

Summary of this case from United States v. Melvin

In Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637, 88 S.Ct. 2103, 2104, 20 L.Ed.2d 1313 (1968), the warrant failed because the justice of the peace issuing it made no inquiry into the factual basis of the officer's conclusions.

Summary of this case from United States v. Guarino

In Lee Art Theatre, Inc. v. Virginia, 1968, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313, the Supreme Court reversed a Virginia conviction for possessing and exhibiting lewd and obscene motion pictures.

Summary of this case from Entertainment Ventures, Inc. v. Brewer

In Lee Art Theatre, the magistrate issued the warrant on the basis of an affidavit of a police officer stating that he had determined from personal observation that certain named motion pictures were obscene.

Summary of this case from Cambist Films, Inc. v. Tribell

In Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), the Supreme Court implied that a valid basis might exist for treating films differently in this respect than written material.

Summary of this case from West v. State

In Lee Art Theatre, the Supreme Court, on the authority of Marcus v. Search Warrant of Property, 367 U.S. 717, 6 L.Ed.2d 1127, 81 S.Ct. 1708 (1961), reversed the conviction of the operator of a motion picture theater for possessing and exhibiting obscene and lewd films.

Summary of this case from State v. Rabe

In Lee Art Theatre v. Virginia [ 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968)], supra, the Court went so far as to suggest that it was an open question whether a judge need "have viewed the motion picture before issuing the warrant.

Summary of this case from 4447 Corp. v. Goldsmith

In Lee Art Theatre v. Virginia (1968) 392 U.S. 636 [20 L.Ed.2d 1313, 88 S.Ct. 2103], the Supreme Court reversed a conviction for possessing and exhibiting lewd and obscene motion pictures, holding that the pictures had been unconstitutionally seized.

Summary of this case from In re Ward

In Lee Art Theater v. Virginia, [ 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313] supra, the Court went so far as to suggest that it was an open question whether a judge need `have viewed the motion picture before issuing the warrant.'...

Summary of this case from Robinson v. City of Birmingham

In Lee Art Theatre v. Virginia (1968), 392 U.S. 636, 20 L.Ed.2d 1313, 88 S.Ct. 2103, certain films were seized pursuant to a warrant issued on the basis of an affidavit of a police officer which stated only the titles of the films and that the officer had determined that the films were obscene based upon his personal observation of the films and the billboard in front of the theater.

Summary of this case from People v. Bates

In Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), the United States Supreme Court reversed a conviction for exhibiting obscene motion pictures because the seizure of the films violated constitutional requirements.

Summary of this case from Melton v. State

In Lee Art Theatre, Inc., v. Virginia (1968), 392 U.S. 636, the Supreme Court ordered evidence suppressed not because it was seized incident to a lawful arrest but, rather, because the search warrant was issued without probable cause.

Summary of this case from State v. Albini

In Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636 [20 L.Ed.2d 1313, 88 S.Ct. 2103], a police officer had actually seen the motion picture involved.

Summary of this case from People v. Golden

In Lee Art Theater v. Virginia (392 U.S. 636), the Supreme Court condemned the seizure of a copy of a film without prior adversary hearing, leaving open the question of whether a Judge rather than a police officer should view the film before issuing an ex parte warrant.

Summary of this case from Milonas v. Schwalb
Case details for

Lee Art Theatre v. Virginia

Case Details

Full title:LEE ART THEATRE, INC. v . VIRGINIA

Court:U.S.

Date published: Jun 17, 1968

Citations

392 U.S. 636 (1968)
88 S. Ct. 2103
20 L. Ed. 2d 1313

Citing Cases

Entertainment Ventures, Inc. v. Brewer

The seizures of the various films in these cases were admittedly made without a search warrant or pursuant to…

State v. Fisher

{¶ 23} Appellant contends the trial court could not rely upon the "bare bones conclusions" of the officers…