68 N.Y.2d 296 | NY | 1986
Lead Opinion
OPINION OF THE COURT
In our earlier decision in this case (65 NY2d 566), we held that the issuing magistrate erred in approving a warrant authorizing the seizure of video cassette films as evidence that defendants were promoting obscenity. The warrants were void, we said, although supported by police affidavits itemizing several scenes of patently offensive sexual conduct, because
I
The appeal arises from proceedings instituted in the Village of Depew Justice Court charging defendants with multiple counts of obscenity in the third degree based upon their knowing possession, with intent to promote, of allegedly obscene video cassette films (Penal Law § 235.05 [1]). After arraignment, defendants moved to suppress the films contending that the warrant authorizing seizure was not based on probable cause. Justice Court granted the motion and dismissed the informations. County Court affirmed its order and a Judge of this court granted the People leave to appeal. Upon review we addressed both procedural and substantive issues. The procedural issue concerned the extent of the inquiry a magistrate must make before issuing a warrant to seize materials that may enjoy First Amendment protection.
On the substantive issue, we noted that before a person may be found guilty of promoting obscenity the materials he promotes must be more than sexually explicit, they must be obscene under the statutory definition. That definition contains three elements: the material must not only be patently offensive but also, when considered as a whole and judged by the average person applying contemporary community standards, its predominant appeal must be to prurient sex, and it must lack serious literary, artistic, political and scientific value (see, People v P. J. Video, 65 NY2d 566, 572, supra [construing Penal Law §235.00 (l)]).
On certiorari review, the Supreme Court judged probable cause by applying the totality of the circumstances/fair probability test of Illinois v Gates (462 US 213). The Gates rule originally was adopted to test the reliability of anonymous informants’ tips. It overruled the established two-pronged Aguilar-Spinelli test (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410) which required a court to review both the basis of the informant’s knowledge and the reliability of his information, to permit a magistrate to now decide whether, given all the circumstances set forth in the police affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. In this case, the Supreme Court extended the reach of this "totality of the circumstances/fair probability” standard and applied it, for the first time, to an obscenity case to permit the magistrate to focus generally on the explicit nature of pornographic material without specifically considering the other statutory elements of the crime (see, New York v P. J. Video, 475 US —, 106 S Ct 1610, 1615-1616, supra [construing Gates]). Having done so, it remanded the case to us for our further consideration.
II
State courts are bound by the decisions of the Supreme
Courts and commentators have identified many considerations and concerns upon which a State court may rely when determining that its Constitution accords greater protection to individual liberties and rights than the protection guaranteed by the Federal Constitution (see generally, State v Hunt, 91 NJ 338, 450 A2d 952 [Handler, J., concurring]; Symposium: Emergence of State Constitutional Law, 63 Tex L Rev 959-1318 [1985]; Galie, The Other Supreme Courts: Judicial Activism Among State Supreme Courts, 33 Syracuse L Rev 731 [1982]; Developments in the Law: The Interpretation of State Constitutional Rights, 95 Harv L Rev 1324-1502 [1982]; Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va L Rev 873, 934-944 [1976]). One basis for relying on the State Constitution arises from an interpretive review of its provisions. If the language of the State Constitution differs from that of its Federal counterpart, then the court may conclude that there is a basis for a different interpretation of it (see, Maltz, Dark Side of State Court Activism, 63 Tex L Rev 995, 1000-1001). Such an analysis considers whether the textual language of the State Constitution specifically recognizes rights not enumerated in the Federal Constitution; whether language in the State Constitution is sufficiently unique to support a broader interpretation of the individual right under State law; whether the history of the adoption of the text reveals an intention to make the State provision coextensive
Our determination rests on noninterpretive grounds. We rely principally on established Federal and State law because we believe the arguments supporting that body of law are more persuasive than the arguments supporting application of the Gates rule in this obscenity case, and are consistent with the admonition of an earlier Supreme Court that constitutional provisions for the security of persons and property are to be liberally construed (see, Boyd v United States, 116 US 616, 634). Our decision, however, is also based on principles of federalism and on New York’s long tradition of interpreting our State Constitution to protect individual rights. In this case, we consider two fundamental rights, the right of free expression and the right of citizens to be free from unlawful governmental intrusions.
Ill
In the past we have frequently applied the State Constitution, in both civil and criminal matters, to define a broader scope of protection than that accorded by the Federal Constitution in cases concerning individual rights and liberties (see, e.g., Rivers v Katz, 67 NY2d 485 [right of involuntarily committed mental patients to refuse antipsychotic medication]; Bellanca v State Liq. Auth., 54 NY2d 228, cert denied 456 US 1006 [blanket ban on topless dancing]; Sharrock v Dell Buick-Cadillac, 45 NY2d 152 [statutory provisions for foreclosure of garageman’s possessory lien]; People v Isaacson, 44 NY2d 511 [due process limits on police conduct]; People v Hobson, 39 NY2d 479 [right to counsel]; see generally, Galie, State Constitutional Guarantees and Protection of Defendants’ Rights: The
These decisions reflect a concern that the Fourth Amendment rules governing police conduct have been muddied, and judicial supervision of the warrant process diluted, thus heightening the danger that our citizens’ rights against unreasonable police intrusions might be violated. We see the Supreme Court’s present ruling as a similar dilution of the requirements of judicial supervision in the warrant process and as a departure from prior law on the subject. As we read the court’s decision, it condones a probable cause determination by a magistrate based only upon the strength of the showing of probable cause as it relates to one of several necessary elements of the crime involved. While the "totality of the circumstances/fair probability” formulation may satisfy some as an acceptable analytical framework when used to evaluate whether an informant’s tip should be credited as one element bearing on probable cause, the argument for its validity breaks down where, as here, the standard is applied in a different, nonhearsay, probable cause context. In Gates, all available pertinent information known to the police was presented to the magistrate, and brought to bear on the issue
Several years ago we summarized our past decisions on the subject, restating a rigorous, fact-specific standard of review imposed upon the magistrate determining probable cause.
"The existence of probable cause is a determination solely for the Magistrate, not the affiant, and should only be made when probable cause has been demonstrated as a matter of fact in the manner prescribed by statute (CPL art 690) and decisional law (see, e.g., People v Marshall, 13 NY2d 28, supra; People v Brady, 16 NY2d 186).
* * *
"Therefore when the Magistrate undertakes this factual determination, he should consider all aspects of the information supporting the application. Of particular relevancy in this process is an evaluation of the sources of information and the manner in which it was acquired. The Magistrate should also consider the experience and expertise of the officers involved and the extent to which the information has been verified. Further attention should be given to the nature of the crime and the exigencies, if any, involved. In sum, the Magistrate
"Where it appears that the Magistrate has conducted such a measured and comprehensive examination into the basis for the warrant, the factual determination as to probable cause will, of itself, constitute a suitable makeweight when the warrant is challenged (People v Williams, 20 NY2d 388; Ker v California, 374 US 23). By the same token, where the Magistrate merely acts as a rubber stamp the validity of the warrant will be suspect.”
(People v Hanlon, 36 NY2d 549, 559, supra [emphasis supplied].) That decision established a clear and definable standard of review. It imposed a specific, nondelegable burden on the magistrate which required that he, not the police, determine probable cause, and it required that his determination be objectively verifiable (see, Beck v Ohio, 379 US 89, 97; cf. United States v Leon, 468 US 897, supra; and see generally, 1 LaFave, Search and Seizure § 3.2 [b]). This is the standard that should be applied to protect the rights of New York citizens.
Our decision to rely on article I, § 12, rather than on the Supreme Court’s Fourth Amendment pronouncement in this case, is motivated also by concerns of federalism and separation of powers (cf. Maltz, op. cit., 63 Tex L Rev, at 1016-1023 [discussing institutional factors justifying independent State court review]). The States exist as sovereign entities independent of the national Government and the Tenth Amendment reserves to them and the people "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States” (US Const 10th Amend). Thus, the "structure of state governments and their sphere of operations simply are not the subjects of the Constitution, except insofar as the Constitution shifts power from the states to the national government, or protects the rights of individuals from governmental violations” (Tribe, American Constitutional Law § 5-20, at 300). One of the powers reserved to the States is the power to define what conduct shall be criminal within its borders. As Justice Marshall noted in his dissent, the determination whether a work is obscene and therefore criminal — or a determination whether probable cause exists to believe a work violates State proscriptions against obscenity — is a "matter of state law and the rightful province of the state courts” (New York v P. J. Video, 475 US —, 106 S Ct 1610, 1619, supra
Finally, it should be noted that obscenity cases differ from other crimes because, by definition, they are predicated on contemporary community standards. While fundamental First Amendment restraints on State power do not vary from community to community, "[p]eople in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity” (Miller v California, 413 US 15, 33, supra [Burger, Ch. J.]). When viewed as a whole, a challenged work may be a valueless piece of pornography, appealing only to the prurient interests, and the proof before the magistrate may establish this in the view of the reviewing Judges. But the work is not criminally obscene unless so judged when applying contemporary community standards. The parameters of the "community” whose standard is to be applied are not only nonnational, but also
The legal reasoning supporting our views, our understanding of principles of federalism, and this State’s legal and cultural traditions all lead us to conclude that we should depart from the Federal rule stated in this case. We hold, therefore, that this warrant application did not demonstrate the probable cause required under the provisions of article I, § 12 of the State Constitution and accordingly, on reargument following remand from the United States Supreme Court, we affirm the order of the County Court.
. Article I, § 12 provides, in pertinent part: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
. In response to the dissent (dissenting opn, point I, at pp 312-318), we would merely point out that our original opinion cited Maryland v Macon (472 US 463); Roaden v Kentucky (413 US 496); Stanford v Texas (379 US 476); and Marcus v Search Warrant (367 US 717) solely on this procedural issue, to determine whether the magistrate had adhered to the warrant process (see, People v P. J. Video, 65 NY2d 566, 567-570). We did not in our prior opinion, nor do we in this opinion, apply those cases to require that a higher level of substantive proof be submitted to the magistrate.
. Penal Law § 235.00 (1) defines "Obscene” as follows: "1. 'Obscene.’ Any material or performance is 'obscene’ if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, sodomy, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political, and scientific value. Predominant appeal
. The guarantee against unreasonable searches and seizures found in section 12 was originally contained in a statute, Civil Rights Law § 8, and there is little in the section’s textual language, the history of its incorporation into the State Constitution in 1938, or the purpose of the incorporation which would support an interpretation that it was to be applied more expansively than the Fourth Amendment. Indeed, for over 100 years it was not deemed necessary to incorporate the guarantee into the State Constitution because the statutory provision, now section 12, was deemed generally coextensive in scope with the Fourth Amendment. Before the Supreme Court decisions in Wolf v Colorado (338 US 25) and Mapp v Ohio (367 US 643), the only difference between the two was in the application of the exclusionary rule (see generally, 1938 NY State Constitutional Convention Committee, Problems Relating to the Bill of Rights and General Welfare, at 215-218). Accordingly, we do not rely on textual or historical distinctions from the Federal Constitution to support our decision.
. Contrary to the contention found in point II of the dissent (at pp 318-319), the Supreme Court did rely upon the totality of the circumstances/fair probability standard enunciated for the first time in its recent decision, Illinois v Gates (462 US 213). Gates was the only decision cited or quoted in the opinion to define the substantive test of probable cause. The court employed the language of Gates to reach a determination that the magistrate was given "more than enough information to conclude that there was a 'fair probability’ that the movies satisfied the first and third elements of the statutory definition” (New York v P. J. Video, 475 US —, 106 S Ct 1610, 1616).
Dissenting Opinion
(dissenting). I concur without reservation in much of the articulate and persuasive opinion of Judge Simons. It must be understood that Judge Simons is writing for a unanimous court in his general comments concerning the circumstances when State courts, including our own, should rely on their respective Constitutions to accord "greater protection to individual liberties and rights than the protection guaranteed by the Federal Constitution” (majority opn, at p 302). Certainly, when it appears that some preexisting right which has been guaranteed under our common law or "the history and traditions of the State” (majority opn, at p 303) is no longer protected under the Federal Constitution we should not hesitate to rely on our State Constitution.
Thus, in a case involving a warrantless search (People v Johnson, 66 NY2d 398) we adhered to our established State constitutional standard based on the two-pronged veracity and basis of knowledge Aguilar-Spinelli test and declined to apply the less protective "totality of the circumstances” rule recently formulated by the Supreme Court in Illinois v Gates (462 US 213). And in People v Bigelow (66 NY2d 417, 426,
Here, the majority’s decision to invalidate the search warrant
If I could accept the majority’s major premises — that the Supreme Court in its decision in this case has diluted "the requirements of judicial supervision in the warrant process” and departed "from prior law on the subject” (majority opn, at p 305) and that New York is merely adhering to the existing level of protection afforded in People v Hanlon (supra) — I would willingly concur in the result. In my opinion, however, the majority’s premises do not withstand analysis. On the contrary, as I read the opinion in the light of our earlier decision (People v P. J. Video, 65 NY2d 566) and other existing New York precedents, the majority has established a more stringent rule pertaining to what is required for a warrant to seize materials for use as evidence in an obscenity case — a rule which differs from what, until today, has been the law in this State and, I submit, remains the established Federal constitutional law notwithstanding the Supreme Court’s decision in New York v P. J. Video (475 US —, 106 S Ct 1610). Because the considerations which clearly called for reliance on our State Constitution to afford protection for the constitu
I
It has never been suggested that the warrant issued here authorized a seizure of the type which constitutes prior restraint under the First Amendment
A) In our original decision we rejected the basis upon which Erie County Court had ordered suppression of the videocassettes as evidence — that Supreme Court Justice Easier, acting as magistrate, had not personally viewed the cassettes before issuing the warrant. We specifically held that there was no need for the issuing magistrate to "view the film or even a part of it before approving a warrant” (65 NY2d, at p 571). We affirmed the invalidation of the warrant on an entirely different ground. Citing the Supreme Court’s decisions in Roaden v Kentucky (413 US 496, supra); Marcus v Search Warrant (367 US 717, 730-731); Stanford v Texas (379 US 476, 481-485);
"The New York Court of Appeals likewise affirmed, although on a different theory than that of the Justice Court. According to the Court of Appeals, 'there is a higher standard for evaluation of a warrant application seeking to seize such things as books and films, as distinguished from one seeking to seize weapons or drugs, for example (Roaden v. Kentucky, [413 U.S. 496], 504 [93 S.Ct. 2796, 2801, 37 L.Ed.2d 757] [1973]; Marcus v. Search Warrant, 367 U.S. 717, 730-731 [81 S.Ct. 1708, 1715-16, 6 L.Ed.2d 1127] [1961]). In applying the [Fourth] Amendment to such items, the court must act with "scrupulous exactitude” (Stanford v. Texas, 379 U.S. 476, 481-485 [85 S.Ct. 506, 509-12, 13 L.Ed.2d 431] [1965]; see also, Maryland v. Macon, 472 U.S. —, 105 S.Ct. 2778, 86 L.Ed.2d 370 [1985]).’ 65 N.Y.2d, at 569-570, 493 N.Y.S.2d, 991, 483 N.E.2d, at 1123 (footnote omitted). Using this 'higher’ probable cause standard to review the affidavits submitted in support of the warrant application, the Court of Appeals stated:
" 'Many of the scenes described contain explicit sexual activity, patently offensive by any constitutional standard, but the allegations of the affidavits do not indicate whether they constitute all, most or a few of the scenes presented in the films * * * The descriptions of the action are not supplemented by references to the narrative or dialogue of the films and the affiant attempted to describe the "character” or "theme” of the movies by settings having nothing to do with the plot * * * He made no attempt to reveal the story line (or lack of one) of the films or demonstrate that their "predominant appeal” was to prurient interest. In short, none of the affidavits permit an inference that the scenes described are more than a catalog of offensive parts of the whole.’ Id., at 570-571, 493 N.Y.S.2d, at 992, 483 N.E.2d, at 1124.” (475 US, at p —, 106 S Ct, at p 1613.)
After pointing out that we had invalidated the warrant under "this [Roaden v Kentucky] 'higher’ probable cause standard” (106 S Ct, at p 1613), the Supreme Court reversed our determination on the ground that under the Federal Constitution that higher standard of review is not applicable for the issuance of a warrant not involving a prior restraint where
“The New York Court of Appeals construed our prior decisions in this area [see, e.g., Roaden v Kentucky, supra, and Marcus v Search Warrant, supra] as standing for the additional proposition that an application for a warrant authorizing the seizure of books or films must be evaluated under a 'higher’ standard of probable cause than that used in other areas of Fourth Amendment law. But we have never held or said that such a 'higher’ standard is required by the First Amendment. In Heller, we said:
" '[SJeizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film. If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible * * *
" 'The necessity for a prior judicial determination of probable cause will protect against gross abuses * * *’ 413 U.S., at 492-493, 93 S.Ct., at 2795 (emphasis added; footnotes omitted).” (106 S Ct, at pp 1614-1615.)
The majority, in its opinion here, does not say specifically that it is now adopting, as a matter of New York constitutional law, the Roaden v Kentucky (supra) higher standard of review as the standard required for a warrant to seize a limited number of items solely for use as evidence in an obscenity case. Nevertheless, a fair reading of the opinion compels the conclusion that this higher standard is precisely the rule that is being adopted. Nowhere in the opinion does the majority say that this is not so.
B) Whether or not in its opinion the majority is purposefully adopting the higher Roaden v Kentucky (supra) “prior restraint” standard, one thing seems evident: in its holding that the affidavits are inadequate to support the warrant, the majority is applying the “prior restraint” standard or one very close to it — a standard which is considerably more stringent than what has heretofore been required. An analysis of
The affidavits are insufficient, the majority says, under the established New York standard stated in People v Hanlon (36 NY2d 549, 559, supra) because, while "[m]any of the scenes described contain explicit sexual activity, patently offensive by any constitutional standard” (People v P. J. Video, 65 NY2d 566, 570-571, supra), the information provided "relates to [only] one of several necessary elements of the crime involved” (majority opn, at p 305). Put more specifically, the majority holds that although the affidavits undoubtedly show that the videos are "patently offensive”, they do not establish whether their predominant appeal is to "prurient sex” or whether they "lack serious literary, artistic, political and scientific value” (majority opn, at p 300). The significant question here is not whether Investigator Groblewski’s affidavits did, in fact, contain sufficient information so that Justice Easier could reasonably conclude that all three elements of the obscenity definition in Penal Law § 235.00 (1) had been satisfied.
Neither the defendants nor the majority cite a Federal decision, a New York decision, or one from another jurisdiction where a court has held a warrant invalid because the
The majority’s sole authority for the rule it imposes is People v Hanlon (36 NY2d 549, supra), the decision it characterizes as establishing "a clear and definable standard of review” (majority opn, at p 307). But there is nothing in Hanlon to support the holding that Supreme Court Justice Kasler did not have enough before him in the affidavits (although concededly sufficient for a finding that the videocassettes were "patently offensive”) to exercise his judgment and to come to what necessarily would be an opinion based on
Our court several years ago held that an adversary hearing on the issue of obscenity is not required before a warrant to seize materials for evidence may be issued (People v Heller, 29 NY2d 319). In Heller v New York (413 US 483),
II
An analysis of the Supreme Court’s opinion in this case and its opinion of Illinois v Gates (462 US 213, supra) simply does not support the proposition that the Supreme Court has diluted "the requirements of judicial supervision in the warrant process” (majority opn, at p 305) by adopting what it refers to as the "totality of the circumstances/fair probability” formulation of Illinois v Gates.
It is significant that, although the majority refers repeatedly to what seems to have become a "buzzword” — the phrase "totality of the circumstances” — that phrase never appears in the Supreme Court opinion (New York v P. J. Video, 475 US —, 106 S Ct 1610, supra). The reason for this, I believe, is obvious. As the majority itself notes (majority opn, at p 301) the Illinois v Gates decision applied to a totally dissimilar type of warrant application — one based on hearsay information supplied to the affiant by an informant. The holding in Illinois v Gates was simply that the rigid "two-pronged test” under Aguilar and Spinelli for determining whether an informant’s tip establishes probable cause for issuance of a warrant was abandoned and replaced by the more flexible "totality of the circumstances” test. The phrase "totality of the circumstances” as describing the method of judging the sufficiency of information supplied in a warrant application has meaning only in the context of an application based on hearsay infor
Here, the application is on personal knowledge of Investigator Groblewski who saw the films himself. There is no informant. The question before us relates solely to the adequacy of Investigator Groblewski’s description of what he saw. "Totality of the circumstances” is meaningless in this context. Nothing in the Supreme Court’s reference to Illinois v Gates suggests that the court was applying anything other than its established rule for assessing the adequacy of an application for a warrant
Ill
My differences with my colleagues come to this. I believe that in holding that this warrant application is insufficient we are creating a new and more stringent standard under New York constitutional law for testing applications for a warrant to seize evidence in obscenity cases where prior restraint is not involved. I heartily agree that there are cases where we should, as the highest court in this State, apply our State Constitution to protect important and basic rights which are not afforded protection under the Federal Constitution. In my opinion, however, this is not such a case. Thus, with full respect for the contrary views of my colleagues, I am compelled to disagree.
Chief Judge Wachtler and Judges Meyer, Kaye, Alexander and Titone concur with Judge Simons; Judge Hancock, Jr., dissents and votes to reverse in a separate opinion.
On reargument, following remand from the United States Supreme Court, order affirmed.
. In People v Johnson (66 NY2d 398, 407), for example, we based our decision to reject the "totality of the circumstances” rule of Illinois v Gates (462 US 213), in part, on the need for "predictability and precision in judicial review of search and seizures cases” and for providing " 'bright line’ guidance to police personnel in performing their duties.”
. The affidavits upon which the warrant was granted by the issuing magistrate (Supreme Court Justice Theodore S. Easier) are printed in full as an appendix to the Supreme Court opinion (475 US, at p —, 106 S Ct, at pp 1616-1619) and as an appendix to the dissenting opinion to our prior decision (65 NY2d, at pp 585-588). They are summarized at 106 S Ct, at page 1616 and at 65 NY2d, at page 580. These affidavits describe the contents of what were advertised by defendants as "adult cassette movies” (entitled "Taboo II”, "California Valley Girls”, "All American Girls”, "Taboo”, "Debbie Does Dallas”). Each affidavit describes consensual acts of deviant sexual intercourse (106 S Ct, at p 1616). It is conceded that "[m]any of the scenes described [in the affidavits] contain explicit sexual activity, patently offensive by any constitutional standard” (People v P. J. Video, 65 NY2d 566, 570, 571).
. The warrant was issued solely for the purpose of seizing one or two copies of specifically identified videocassettes for use as evidence in the criminal prosecution. Had defendants shown that other copies of these videocassettes were not available, the court would have had the videos copied and immediately returned to defendants pursuant to Heller v New York (413 US 483, 492-493). In all, 13 cassettes were seized. This was not a large scale seizure of presumptively protected materials (compare, e.g., Marcus v Search Warrant, 367 US 717, involving a warrant authorizing a seizure of materials which in the opinion of police officers were obscene and under which 11,000 copies of 280 publications books and pictures were seized) or the seizure of a film from a movie theater resulting in an abrupt halt of the public’s right to see the movie (compare, e.g., Roaden v Kentucky, 413 US 496, 504) or a general warrant authorizing a wholesale seizure (compare, e.g., Stanford v Texas, 379 US 476, 477, involving a warrant authorizing the seizure of unspecified "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments” under which 2,000 items were seized).
. It would serve no purpose to debate anew (see, People v P. J. Video, 65 NY2d 566, 570-571, 580-584) whether the affidavits are sufficiently complete and detailed so that Supreme Court Justice Kasler acting as a neutral and detached magistrate could conclude that the videocassettes were not only patently offensive but also appealed to prurient sex and lacked serious literary or artistic value. Suffice to say that on this question the Supreme Court has stated: "Respondents concede that the affidavits describing the five films adequately established probable cause with respect to the second of the three elements of obscenity under the statute, namely, that the movies depicted 'in a patently offensive manner’ the various kinds of sexual conduct specified in the statute. See N.Y. Penal Law § 235.00 (1) (b) (McKinney 1980). Our review of the affidavits convinces us that the issuing justice also was given more than enough information to conclude that there was a 'fair probability’ that the movies satisfied the first and third elements of the statutory definition, namely, that the 'predominant appeal [of the movies] is to the prurient interest in sex,’ and that the movies 'lac[k] serious literary, artistic, political, and scientific value.’ See N.Y. Penal Law §§ 235.00 (1) (a), (c) (McKinney 1980).” (475 US, at p —, 106 S Ct, at p 1616.)
. The oft-quoted statement of Justice Stewart pertaining to the difficulty in defining pornography in his concurring opinion in Jacobellis v Ohio (378 US 184) seems apt here: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it”. (Id., at p 197.)
. Under Heller v New York (413 US 483, 490-491) defendants had an absolute right to demand "a prompt judicial determination of the obscenity issue in an adversary proceeding”. It is significant that they did not do so.
. That the Supreme Court’s reference in its opinion here to Illinois v Gates (462 US 213) was not for any purpose pertaining to the so-called "totality of the circumstances” rule but merely for the purpose of restating the established general rule for probable cause appears clearly from the following: "We believe that the analysis and conclusion expressed by the dissenting judge are completely consistent with our statement in Gates that 'probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.’ 462 U.S., at 244, n. 13, 103 S.Ct., at 2335, n. 13.” (475 US, at p —, 106 S Ct, at p 1616.)