United States v. Kenneth Guarino

America, Appellee, UNITED STATES

v. GUARINO,* Defendant,

Kenneth

Appellant.

No. 81-1301. Appeals,

United States

First Circuit. Dec.

Reheard 28, 1984. Feb.

Decided City, Fahringer, New York

Herald Price Imperial Guarino and Distribu- Kenneth tors, Inc. Md., Towson, Seekford, E.

William Inc., Anthony Shops, Book brief for Little DiBona, Enterprises, Inc. and Gemini Sheehan, Portland, Me., on F. brief John Osborne, Miguel, for Edward Gloria Renzi, Joseph Jr. Baker, Boston, Mass., on brief S.

Nelson defendant-appellant. * Distributors, 81-1307, Inc.; 81-1302, Ed United States v. opinion United also This covers Nos. 81-1308, Inc.; 81-1303, Miguel; v. United States Gloria Shops, Unit ward v. States Little Book 81-1309, Osborne; 81-1304, Joseph DiBona; States v. Anthony United United ed States Renzi, Imperial Jr. Enterprises, v. Gemini Inc. and States III, Flynn, Atty., magazines, R. U.S. three Delight, Maurice Asst. entitled Turkish Mass., Weld, 1, Boston, F. Sex Foto Fiction No. and with whom William Sex Foto Fic- 2, Katzmann, tion Atty., Gary No. hereinafter and S. Asst. sometimes the affi- U.S. magazines. davit Mass., brief, adequately The affidavit Atty., Boston, were copies showed that of these magazines, appellee. for truck, openly traced defendants’ CAMPBELL, Judge, ALD- Before Chief openly offered for at sale Combat Zone COFFIN, BREYER, RICH, BOWNES and stores, purchased by had been there Boston Judges. Circuit police officers on various dates between February 2, January 17 and 1978. On the ALDRICH, BAILEY Senior Circuit inspection basis of the affidavit and of the Judge. magazines magistrate issued a warrant transport- Defendants were convicted of of, commanding the seizure ing commerce obscene matter interstate quantity materials, “a of obscene includ- § sale, 1465, purpose 18 U.S.C. books, ing pamphlets, magazines, news- § conspiracy, and for 18 U.S.C. 371. The papers, prints” presently films and by pan- were convictions affirmed a divided said Contemporaneously, truck. subsequently appeals el and their magistrate Order, so-called, issued an heard en banc. We reverse. containing findings, his and concluding with instructions to the officers.2 morning February On special Gilligan presented F.B.I. officer to a The warrant and the order did not refer magistrate four-page his affidavit re- to each other. The stopped truck was questing authorizing search warrant some prior copy time A.M. 11:45 when a for, of, alleged- and seizure obscene matter of the warrant was served on the driver. panel ly presently being in a truck Gilligan, Officer ultimately who led the transported from defendants’ warehouse in following search the unauthorized arrest of Providence, Island, delivery Rhode the driver the taking retail stores Zone.1 possessed Boston’s Combat contents garage, F.B.I. Accompanying copies copy the affidavit were order. acts, simulated, pervert, 1. The Combat Zone has been described as normal or actual or magazines depict "adult district and that entertainment of Boston.” Com further lewd Books, Inc., genitals. monwealth v. exhibition of the Lotten Mass. Moreover, App. 428 N.E.2d 147. on the basis of the affidavit sub- by Special Agent Gilligan, mitted this Court delivery pattern concludes that there is a

2. ORDER magazines of the same tenor as De- Turkish February light, Sex Photo Fiction No. and Sex Photo COHEN, U.S.M. by Imperial Fiction No. Distributors and/or Upon by review of the affidavit submitted Kenneth F. Guarino from State of Rhode Agent Special Gilligan, this Lawrence foregoing, Island. On basis of magazines Delight has reviewed Turkish bearing Court concludes that the one truck by Special Agent Gilligan, referred as well Rhode Island commercial license 91826 is magazines as the Sex Photo Fiction No. 1 and materials, possession presently in obscene by Sex Photo Fiction No. also referred to books, including magazines, pamphlets, news- Special Agent Gilligan. Upon review of those films, papers, prints of the same tenor magazines, three this Court concludes that the description Delight, Photo Turkish Sex average person, applying contemporary com- Fiction No. and Sex Photo Fiction No. 2. standards, magazines munity would find the Agent foregoing, Special On the basis of the whole, appeal prurient as a taken ests; to the inter- Gilligan Lawrence of the Federal Bureau of describe, magazines depict that those or Investigation, by and other officers authorized patently way in a conduct offensive sexual law, hereby commanded to search that law; specifically by applicable defined bearing one truck Island Rhode commercial whole, magazines, that the taken as a lack license 91826 order to determine whether artistic, literary, political, serious scientific or or not there exists obscene therein materials particular, value. this Court finds that Delight, of the same tenor as Turkish Sex patently rep- depict those offensive Photo Fiction No. 1 and Sex Photo Fiction No. descriptions resentations of ultimate sexual aside, films, must be set the verdicts here, the war- Pausing we observe that convicted materials”) jury could have inasmuch (“obscene language rant single finding any item obscene. in Marcus condemned what was precisely Cf. Corp., 1 v. Pharmaceutical Brochu Ortho Warrant, v. Search 652; Cir., Taylor, 642 F.2d Clark 1708, 1715-16, L.Ed.2d 731-32, 81 S.Ct. 4, 1983, n. Cir., F.2d impermissible gen- constituting an 1127, as the unanimously of areWe eral warrant. complaints, which There are two basic failure at the in circumstance that this view that assumption on the the will consider we incorporate attach, the order to to or least allonge the warrant. was a to order valid warrant, that it so the reference into by The Warrant any by it, unsupported on is read would response Amendment was a Fourth the authority, majority a of discovered gave the writs that officers to of assistance the omission would to tends believe court roving powers of intrusion the crown point pressed the been fatal had have been person In this connec- upon property. made However, defendant remarks below. anything it would difficult to find tion were inconsistent in the district court language presently apt than the more (“[Y]our ... Honor asserting objection this 1965, Texas, v. the Court in Stanford agents that agreement an we 476, 506, 509-11, 481-85, at at ____”) and the order acting under quoting After the Fourth 13 L.Ed.2d 431. procedure that the are confident since we said, Amendment, the Court not reach again, we need not occur will precise and clear. “These words validity.3 to its conclusion as final of those They reflect the determination searched garage the officers At Rights Bill of that wrote the who cartons,4 by large through a number forever people of this new Nation should maga eight out separated had afternoon houses, pa- persons, in their ‘be secure films, hereinafter sometimes and five zines and sei- from intrusion pers, effects’ situ, items, inspection, in for the warrant acting under unbri- zure officers ex making After that magistrate. by the general authority of a warrant. dled finding them ob magistrate, amination newly memory in inde- Vivid warrant, calling scene, second issued a general those pendent Americans were seizure, done. Motions which was their assistance as writs of warrants known Dis Imperial denied. suppress were twice had of the Crown so under which officers D.Mass., States, tributors, Inc. v. United The hated writs the colonists. bedeviled 1980, Id., D.Mass., 294; F.Supp. given officials assistance had customs unreported. authority they where search blanket imported in violation of pleased goods that, perhaps noted It will be British tax laws. staleness, none of recognition of their magazines was included affidavit directions, only “materials is that significant but note this

order’s “What is noted history largely history to be further of conflict tenor.” It is the same press. and the single count and the It substantive the Crown between licensing the enforcing indictment single conspiracy count laws later, and, items, only. literature upon publication of are based the warrant gen- libel prosecutions these were for seditious consequence, if all of As a fail, systematically used seized, must eral warrants were wrongly the indictment seventeenth, sixteenth, eigh- e.g., improper, if at some were least many different record 38. How pending Common 4. The indicates note case of 3. We also the may only be inferred from Sheppard, were involved wealth 387 Mass. items - -, hours, granted, N.E.2d cert. lasted several fact the search may well S.Ct. 77 L.Ed.2d participating. with several officers light question. cast centuries____ years executing later war- officer teenth the warrant.’ Marron specific States, rants were sometimes more v. United at 196 [48 content, typically but authorized the S.Ct. L.Ed. 231].” premises of all arrest search of To tell the officers to anything seize persons publication connected with the of which, opinion, in their meets the omnibus libel, particular arrest and sei- legal of obscenity “scrupu definition is not person papers zure of all the a named lous exactitude.” Nor does it become such thought to be connected with a libel. by adding “of the same tenor” as three magazines, named especially when the history prompted “This is the broadly sameness is so in defined as to years ago four the Court less than any material, clude communicative from by government remark that use ‘[t]he prints pictures. books to motion We power the search and seizure as an of particularly note requirement, Stanford’s system suppression adjunct to a for the ante, quoting from Marron v. United objectionable publications is not of new.’ States, that is “nothing to the discre left Warrant, 367 Marcus v. Search tion the of officer.” 1712, 717, at S.Ct. 1708 at [81 Continuing Stanford,5 with p. 379 U.S. at was, history ‘This of L.Ed.2d 1127]. 486, 512, at p. 85 S.Ct. course, part of the intellectual matrix in present “We need decide case our within which own constitutional fab- description whether the things to Rights Bill shaped. ric was of was general- be seized would have been too against background fashioned of pass muster, ized to constitutional had knowledge power that unrestricted of things weapons, been or narcotics search be and seizure could also an in- whiskey.’ ‘cases of See v. Steele United stifling liberty expres- strument of 1, 498, States No. S.Ct. [45 Id., sion.’ at 729 S.Ct. at [81 1715]. point 69 L.Ed. is 757]18 short, history indispens- “In what this that it not any was contraband ably is teaches constitutional seized, kind which was ordered to be but requirement particu- that warrants must literary ‘books, records, material— larly ‘things to is describe be seized’ cards, pamphlets, lists, receipts, memo- scrupulous to the most be accorded ex- randa, pictures, recordings and other ‘things’ books, actitude when the concerning written instruments the Com- the basis their seizure is ideas Party Texas, munist the opera- they which contain. See Marcus Party in tions the Communist Texas.’ Warrant, 367 U.S. 717 Search S.Ct. [81 sweep The indiscriminate of that lan- 1708, 6 A Quantity L.Ed.2d 1127]. guage constitutionally is intolerable. To Kansas, Books v. 378 U.S. 205 S.Ct. [84 hold otherwise false would be 1723, 12 No L.Ed.2d less stan- 809]. Amendment, terms of the Fourth false dard could faithful to First Amend- be meaning, history. its and false to its ment freedoms. 18. quoting Marcus v. Search [Footnote War “ rant, ante, omitted.]” requirement ‘The that warrants shall things particularly describe It true be is was concerned Stanford literature, general political ideology, seized makes searches under with and social impossible degrees prevents them the seizure but there are no here of First describing thing protection, of one under a' warrant any Amendment more than taken, is to be there are or another. As what measures of distress offensive- ness, nothing reader, listener, depending is left to the discretion of the on the 2796, 2799-2800, aspect, In addition to on this see 93 S.Ct. 37 L.Ed.2d 757. Stanford Kentucky, Roaden v. 413 U.S. at 501- disability was not based The officer’s step to the from this It was but viewer.6 standards, Sales, ignorance and hence opinion upon in Lo-Ji recent unanimous York, 99 curable, 442 U.S. dissenting brothers would Inc. v. New as our police 920. There 60 L.Ed.2d it, Ct. furnishing specific S. instruc by him bought two films officer, openly having definition of in terms of Court’s tions bookstore, “adult” from defendant’s Cali obscenity. The definition Miller v. following justice the town presented 24-25, fornia, affidavit. 2614-15, which 37 L.Ed.2d I premises observed “While import, improperly use would believe cause to I have reasonable what guidance jurors, under the impartial films. I also or similar same are the not, court, out, pointed for a as Lo-Ji premises reels of other observed officer, he searching disqualified because objects. other film, magazines may It was not “neutral detached.” observations, my my upon Based the Lo-Ji actual standard noted Mr. Mandakis conversations police determining “simi applied officer maga- the films and me that indicated to activities,” materi and “similar obscene lar activities as de- portrayed similar zines als,” specific more than the one was even above, I to believe have reason scribed here; yet order the Court contained being possessed that this unacceptable.7 his held affidavit of the Penal Article 235 violation record, (U.S. Supreme p. Court Law.” non-neutral Correspondingly, a 6a.) (Emphasis suppl.) express le officer cannot and un-detached supplied probable no The Court held this affidavit, gal in an he cannot conclusions extending beyond cop- a warrant cause for making judgment when seizures. exercise Correspondingly, original films. ies of the officer, judicial after In Lo-Ji the town way; seizing put it other a the the Court issuing the a warrant for the seizure of similarity is determination of officer’s films, open, the two named left warrant unacceptable. equally store, repaired himself to defendant’s conclusory statement of “Based on magazines more films and where he viewed investigator that other simi- police Although added them to the warrant. would be found larly obscene materials was, experience he training and by store, entirely left it at the warrant Court, course, personally qualified, the officials conduct- to discretion of voicing analogy to of assist again writs ing to decide what items were the search additions, ance, saying invalidated these accomplish to their likely obscene and town by participating in the search the Amendment does The Fourth seizure. justice himself in the character of the cast U.S., ante, 442 permit such action.” accordingly precluded from police and S.Ct., (Emphasis at at 2324. making such determinations.8 suppl.) materials, premises I observed what I “[S]exually explicit 4. While but non-obscene 6. distasteful, are same reasonable cause to believe pro- entitled to no less however premis- I observed in the or similar films. also expression.” Fanta- than other forms tection films, magazines Boston, Cir., 1981, and other es other reels of Shop, City sy Inc. v. Book observations, upon my my objects. Based 1126. F.2d [a defendant] conversations with Mr. Mandakis maga- me the films and indicated to picture LIN- 3. I motion [the 7. .... observed portrayed similar activities described zines DA to contain acts female mas- DUKE] AND above, reason believe that I have .to bestiality involving activities turbation and ” being possessed in of .... Su- violation attempted participant in the movie that a female record, pp. preme Court 6a-7a. engage a acts of sexual intercourse with dog____ Upon viewing Shepard type course, restriction, German applies only The Court’s of sexual FOR I observed acts already DINNER] [FOUR articles not to search and seizure of intercourse, fellatio, sodomy, cunnilingus, York, voluntarily exposed. Heller v. New Cf. masturbation____ 2789, 37 L.Ed.2d 745 Lo-Ji, dissenting denigrate Our brothers cast a net over whole pond and retain rely upon court earlier circuit decisions discovered, whatever forfeitable fish are so instructions, that lacked the benefit of its long shortly as it returns the rest. This is a small number of later cases9 precisely the expedition unbridled that the ignored them. Thus Mar United States v. Fourth designed pre- Amendment was Cir., ti, 1263, pre-Lo-Ji a F.2d vent, and which repeatedly the Court has ease, upon insistpng] is extolled as “not peculiarly condemned as improper when compliance” with v. literal Tex Stanford employed trespass on First Amendment police, as’ denial discretion to the al rights. though has made clear that Lo-Ji Finally, our brothers deplore the difficul- exactly meant Court that. Their reliance police ties the they would face if could not upon involving cases “instruments conduct as they themselves did here. This Texas, crime” that in overlooks Stanford seems peculiarly unnecessary place a for U.S., ante, 85 S.Ct. at ante, police difficulties to be as an quoted distinguished used excuse be material,” violating “literary presumptively tween the Fourth Amendment. Un- protected Amendment, by the First drugs, like openly were readily objects. identifiable sale, openly and were by delivered defend- government ants’ trucks. The already had adopt While our brothers do not case, on the three' original magazines, government’s assertion, repeated both traced the officers to the defendants. here, the district court and that there was purchases repeated, could be if there but a “limited detention” and no seizure were, fact, magazines. more such If magistrate until after the had viewed against officers’ evidence the defendants garage, items in situ at the would thought persuade insufficient “considerably have it that it was lim more surely ited the typical jury, managers than seizure” because of the store could be magistrate’s prompt review “that same put welcoming in position immunity every afternoon.” Thus would seizure testify. If government wanted to general under a warrant if be sanitized grandstand, all it needed was to a read magistrate followed close on the of heels Supreme opinions, handful of instead forget the officers. This is to black letter providing of judges. work seven It is “[a]ny law that idea can that a search be noteworthy that there were no First Circuit justified by up long ago it what turns was offering contrary cases advice. rejected jurispru our constitutional Probable Cause 1968, Bumper Carolina, dence.” v. North government 543, equally is 10, 1788, deficient 548 n. 1791 10, respect n. with government, probable 20 L.Ed.2d 797. to the existence of having fish, identified no begins by grossly overstating forfeitable cannot cause. It (judicial States, properly Sovereign officer can make decisions ed. News Co. v. United 6 when, hat, — Cir., 1982, needing police 569, denied, without a to wear he 690 F.2d cert. U.S. viewing picture public display). -, cited, is a motion on Heller, S.Ct. 104 78 L.Ed.2d Lo-Ji was brothers, relying Our on fail note point, but not for this and the court made expressly distinguished that the Lo-Ji court Hel- misstatement, 575-76, extraordinary re at "In Sales, ante, ler on that basis. Lo-Ji case, viewing this we must remember that the 327-28, 2324-25, n. at 99 S.Ct. at Supreme specifically Court [in has stat Heller] n. 6. magistrate ed that need not view a film seizing Pornography before it.” can have other case, post 9. See the dissent's Lo-Ji In the Matter erogenous than effects. Belonging Property to Talk Seizure of of Bookstore, Inc., Cir., 1981, the Town 644 F.2d 10. Whatever restraint is word intended where court characterized the "limited,” we note that some two hours before Cir., Marti, definition United States v. warrant, the seizure under the second Boston "depicting 421 F.2d or un- natural the truck obtain items were used to a Rhode acts,” example natural sexual as an most "the immediately Island warrant that was exercised. scrupulous exactitude.” Lo-Ji was not even cit- being far adequately any present on the 15th is short It was shown

the affidavit. delivering probable say trucks had been cause. To that because the that defendants’ newspapers” to var- “magazines, films, books must stores sold defendants April, since Zone stores ious Combat specula- supplier, their is the rankest been single no However, January, until tion. identified, let alone shown item was magistrate It is true that recited general subject of ob- theOn obscene.11 order, apparent films his but is that he offered, exclusively, scenity affidavit wholesale, adopting, this a did as result opinions of two Boston unsupported conclusions, the affidavit’s final inasmuch chief business of police officers. “[T]he included, truck, being he also regularly is to offer stores [Combat Zone] prints, although pamphlets at no time books, items, including for sale numerous remotely were such documents even traced films, prints and which are ob- magazines, Inspection penulti- defendants. law,” matter of and to “offer scene as paragraph mate of the order makes evident the pub- for sale to pornographic materials findings on the that entire are built were, course, lic.” These conclusions plus acceptance magazines, affidavit verba- Sales, Inc., ante; Roaden worthless. Lo-Ji generalizations. tim of the officers’ ante, 502-03, Kentucky, v. adequately at 2800. It was shown S.Ct. “ conceding ‘probable While that peepshows. The offéred stores difficult,” cause’ more the dissent would and, films exhibited therein officers viewed “technicalities,” off write the difficulties as invariably opinion, “in their the films have and turn to “common sense.” We believe types por- core displayed various of hard quite Stripped erroneous. of unwar opinions these nography.” Again, opinion, that the direct ranted all affidavit worthless. Nor does the fact years ly supports is that almost three peepshows pre- Combat Zone raise quan supplying great had obscenity. defendants been sumption Fantasy Book books, Boston, newspapers n. tities of Shop, City ante. Inc. stores that sold materials that were sex regard With to defendants’ connection explicit. Nothing ually in the affidavit can films, showing sole supplied support finding any matter occasion, prior single four to the months or, indeed, sold in the stores by defendants seizure, one defendants’ truck drivers obscene, throughout the period, was other Zone remained entered a Combat store and magazines of 4-7 than the three affidavit there and was observed “about minutes Sexually explicit, whatever before. weeks servicing peep show film machines may lay person, does not mean it mean this, than defendants therein.” Other were Shop, City Inc. v. Fantasy obscene. Book any not to have connection with shown ante, 6; Boston, “servicing” The word not ex- n. Roth v. United films. was of cf. 487-88, plained. States, 1957, until en Not consideration banc S.Ct. suggested “servicing it machines” 1498; 1 L.Ed.2d Jacobellis v. films, might supplying rather mean than Ohio, 1964, 1676, 12 84 S.Ct. mechanical maintenance which a driver brothers L.Ed.2d 793. Our concede that private might Sig- as a matter. have done obscenity determinations of officers’ respect, all nificantly in this while on other contend, however, They were valueless. number of carried surveillances the cartons that since the stores were “adult enter recorded, none was noted then. in was devotions, tainment,” religious than rather similar there must been more material films traced to defendants’ truck

With no occasions, magazines of there in tenor to the three discovered. on the likelihood this, did, magistrate's finding Compare the affidavit had said nowhere “there precisely delivery pattern magazines have been what same such statements would magazines.]" rejected. Even Lo-Ji tenor as affidavit if the [the affidavit, short, of the by How view Lo-Ji n. In a combination of conten- ante, Lo-Ji, tions, they distinguish which, is not clear.12 some of put, however disre- gard Supreme decisions, us- affidavit, appears So far as from the ing the word “reasonable” in the Fourth nearly years three none of defendants’ cus- context, Amendment out of our brothers prosecuted, tomers had and in 14 been sur- adopt would approach” “flexible to reach veillances, police spent “who have the ma- a “common sense” result. In addition to jority working enforcing of their time ... that, films, the fact as to there was no Commonwealth Massachusetts’ laws probable whatever, cause inescapable dealing obscenity,” had only with found fact is that this case started with a classic three traceable to defendants general warrant, supplemented by an order thought worthy presentation magis- to a to, to, solely directed items that could light this, suspect trate. we must only by government be identified agents willingness wager that our brothers’ exercising which, discretion point at one there were more items of similar character concedes, even the dissent the Court denied only next could be based on an them, which, accordingly, remained a were, nevertheless, assumption that these general warrant, in, places, of all an area pornography shops police, and that protected by the First as well as the Fourth through incompetence, inefficiency, per- only repeat amendment. We can what the worse, haps duty. had failed their This Sales, ante, unanimous Court said in Lo-Ji showing “probable is not an affirmative 442 U.S. at S.Ct. cause, supported by Oath or affirmation.” society “Our is better able tolerate the Moreover, assump- even best of admittedly pornographic peti- business of tions, we must wonder how much of their general tioner than a return to war- patrimony our brothers would have risked era; rant violations of law must be dealt films, containing on defendants’ next truck with within the framework of constitu- when none had ever seen been before. guarantees.” tional Their contention that films could be includ- forget Our brothers would all this because if initially ed the order even there was general reputation, Combat Zone’s lacking [they] “cause to believe would like- by inventing a principle, new that “rea- because, found,” ly be there were no “[i]f repair sonable” cures constitutional viola- truck, films on the the inclusion of films tions. This is not “common sense” to harmless,” the order seem while at would which we subscribe. saying they the same time could be seized discovered, any if Perhaps strikes at the heart because defendants to whom characters, of the Fourth might apply Amendment. This would it were minor plain exception proba- government convert the view any question has not raised cause, discovery, ble standing, based inadvertent lack of we will volunteer Coolidge Hampshire, v. New 403 to do so. Both because the warrant and defective, 29 L.Ed.2d basically into order were and because probable a means for deliberate lacking circumvention of the cause was for whatever requirement. sup- thought intended, The dissent would thus could be the verdicts are aside, port lacking “probable judgments a warrant both set the are conviction affirmation,” supported by cause Oath or reversed and the causes are remanded to failing “particularly as well as to the district court with instructions to dis- deserib[e] things the ... to be seized.” the indictment. miss probable conclusory police 12. On the issue of cause the Lo-Ji affi- "The the statement of inves- disregarded, tigator similarly be davit cannot as our brothers that other obscene material suggest, because not "referred to in the war- would be found at the store ... was not rant," probable pursue because or the Court did not refer to it in cause to a search sufficient dealing "particularity.” Succinctly, beyond looking copies the for additional said, specified 442 U.S. at 99 S.Ct. at two films.” reasons, prior requires whom For several law us BREYER, Judge, with Circuit specific language enough find this to to (dissenting). joins Judge Chief CAMPBELL truck, agents stop the look allow the to here decides the court questions boxes, through segregate the and the de- order, magistrate’s which out of a arise by mag- inspection material for scribed case, peculiar court, for reasons istrate. con The order like a warrant. must treat First, difficult, impossible, if it is not fol the FBI to do the cededly authorized obscenity and limi- given the nature of (a) stop a in the Combat lowing: language, specif- a more tations of to write nearby FBI Zone; (b) bring the truck to the yet pornog- unseen hardcore ic definition through (c) of material garage; look boxes Ohio, raphy. See Jacobellis v. carried, segregating material the truck 1676, 1683, S.Ct. L.Ed.2d obscene; and unlawfully they considered (“I (1964)(Stewart, J., concurring) shall (d) until the segregated material hold the today attempt further define view and determine could it magistrate em- kinds of material I understand perma could be seized more items which pornog- ‘hard-core braced within words [the a.m.; at 11:05 The order issued nently. raphy’] perhaps ... and I could never suc- place the “viewing” took magistrate’s doing But I intelligibly ceed so. know it e afternoon; segregated th materials same Indeed, it____”). descrip- I see when agents be hard by turned out to the FBI language magistrate’s is order tive pornography. core directly Supreme drawn from the Court’s reverses convic- The court defendants’ illustration, California, 413 Miller v. reasons to the order. for two related tions 15, 24-25, 2607, 2614-15, 37 93 S.Ct. language First, that the it believes (1973), might how a state L.Ed.2d com- order fourth amendment’s violates “specifically guidelines define” for a trier “particularly warrants distinguish unlawfully mand that decrib[e] of fact obscene Second, it things to be ... seized.” from material first ... protects. majority the order vio- that the issuance of amendment and believes disagreed about wheth- fourth amendment’s command dissenters Miller lated the possible it was to define unlawful ob- only upon “probable issue er that warrants scenity particularity pass with sufficient the majority I is mistaken cause.” believe context, And in constitutional muster. counts. both by mag- language illustrative borrowed represents Supreme Court’s ef- istrate I. specific possible. as fort to be Such reading A of the order’s common-sense if seizures of materi- language inevitable authorizes the language indicates designate magistrate cannot als that search, of look for stop, the truck to permissible. name ever tenor materials ... of the same obscene Second, appeals approved courts Delight, description as Turkish Sex language specific more the use of no than Fic- Fiction No. Sex Photo Photo here, authorizing at issue searches 2,No. tion considerably more seizures extensive. magazines United, Thus, Cangiano, States whole, prurient appeal (2d Cir.) II), to the (Cangiano taken as F.2d 911-14 whole, interest; denied, ... ... taken as cert. literary, artistic, (1974), or political, up the Second Circuit

lack serious L.Ed.2d pursuant to a war those held “massive” seizures particular, value. ... scientific covering depict rep- rant magazines patently offensive cards, descriptions films, or of ultimate resentations quantity playing acts, books, depicting pervert, normal or actual obscene sexual simulated, depict pictures, constituting lewd hard and ... further and lascivious material, pic- pornographic genitals. core exhibition

873 in portray tures men and entire publications.” women stock “obscene ... natural unnatural sexual acts. United States The in Espinoza, v. warrant denied, (4th Cir.), 641 cert. F.2d 153 454 Property Belonging re Talk In Inc., 841, 153, Bookstore, (9th U.S. 102 Town S.Ct. 70 644 F.2d 1317 L.Ed.2d 125 Cir.1981), approved (1981), the Ninth Circuit a magazines.” referred to “obscene long-term allowing warrant seizure of United Cangiano, States v. 464 F.2d 320 “books, magazines, depict and films which I), (2d Cir.1972) (Cangiano vacated on sex specific acts described in the Affi other grounds, 913, 3047, 413 93 U.S. S.Ct. as, others, among davits” “ultimate sexual 1023, 37 L.Ed.2d per and reinstated cu acts, masturbation, perverted, normal and riam, (2d Cir.1973), F.2d cert. de 491 905 ____” dicta, And, in the Second Circuit has nied, 934, 3223, 418 U.S. 94 S.Ct. 41 approved language that would authorize (1974), L.Ed.2d 1171 a involved warrant for “depicting seizure of films or un natural “obscene, lewd, lascivi- sexual acts.” United States v. natural filthy.” ous and in United The warrant Marti, 1263, (2d Cir.1970), 421 F.2d 1268 Cir.1979), Torch, States v. (4th 609 F.2d 1088 denied, 404 947, 287, cert. U.S. 92 S.Ct. 30 denied,. rt. 957, 446 U.S. 100 S.Ct. ce (1971). Furthermore, Sov 264 L.Ed.2d 2928, (1980), 64 L.Ed.2d 815 authorized sei States, 690 ereign News Co. v. United F.2d “copies lewd, lascivious, zure of — denied, cert. (6th Cir.1982), 569 filthy magazines.” films The warrant -, 69, (1983), 104 S.Ct. 78 83 L.Ed.2d Sales, York, Lo-Ji Inc. v. New 442 U.S. Gilman, States v. (9th United 684 616 F.2d 319, 2319, (1979) 99 S.Ct. 60 L.Ed.2d 920 Distributors, Cir.1982), and G.I. Inc. v. (See Appen contained no standard at all. (2d Cir.1973), Murphy, cert. 490 F.2d 1167 B.) dix majority help And the cannot it denied, S.Ct. along citing an affidavit to which nei (1974), L.Ed.2d 290 Second Ninth (in Supreme ther the its discussion of ap Circuits allowed officers to seize “particularity” question) nor the war any parently obscene materials without see, referred, standard, e.g., United States v. governing provided rant that the ma Roche, plain were “in (1st Cir.1980); terials view” and were held In re 614 F.2d briefly, only pending of a Inc., issuance war Lafayette Academy, (1st 610 F.2d overnight one rant —in case in the ware Cir.1979). found, house an- wh.ere Fourth, here, fact, the order a offers necessary other for the time the offi considerably narrower standard than its bring magistrate. cers to them before the states, language suggests, in addi brief, and any Here the detention seems as tion, agents that the material for which the standard would cabin the discre officer’s are to must be look “of same tenor” as greater “plain tion to a extent than view.” Turkish specific magazines, three named Sherwin, United States F.2d Cf. Delight, Foto No. Sex Fiction and Sex (9th Cir.1977) (plain view doc 199-201 Foto Fiction No. policemen who permanent trine cannot authorize warrant- stopped the truck included Officer McMa arguably subject less seizures of material previously copy nus had seen who cert. de protections), to first amendment Delight Turkish a Combat Zone store. nied, 437 U.S. S.Ct. through who searched (1978). officers the box L.Ed.2d Agent Gilligan, es included FBI who had Third, striking the cases down search three magazines present examined all general overly all involve warrants magistrate. Specific ed them the refer searches seizures more extensive and ence to these would tend general language burdensome and more narrow the officers’ discretion in this area Thus, Marcus v. here. than that issue pornography,” pic Warrant, “hard-core where Search Jaco (1961), ture See is worth thousand words. 6 L.Ed.2d 1127 involved a war- Ohio, supra. bellis v. authorizing seizure of a distributor’s rant 874 allows the order Can the same Constitution that

Fifth, the detention that autho considerably more than jury rely limited to on the standard set forth rized was specific enough put seizure. It allowed officers to typical language order’s segregate and to stop bars, the truck only to a bookseller behind v. Cali- see Miller present same afternoon to that fornia, supra, forbid use of that same Supreme Court has magistrate. The impose much less serious standard emphasized that intrusion recently “[t]he restraint at here—at least when more issue occasioned interests possessory specific readily cannot be devised standards in its nature and vary can both seizure ... resulting impediment and the to law en- that, determining extent,” pro what ques- so forcement seems serious? These required par for a protections are cedural tions me think the case make law seizure, “must the court balance the ticular here approving language of the sort at quality the intrusion on the nature governs. correct and issue is fourth amendment interests individual’s strongest precedent majority’s governmen importance against the language favor consists of it alleged justify the intru tal interests quotes from Texas to the ef v. Stanford — Place, v. U.S. sion.” United States that, taken, fect “As to what is to be noth 2637, 2642, -,-, 77 103 S.Ct. L.Ed.2d ing is left to the of the discretion officer (1983). magistrate’s prompt re 110 476, 485, executing the warrant.” 379 U.S. by the agents seized view of the materials 512, 506, (1965) 85 S.Ct. 13 431 L.Ed.2d provided important an limitation on the in States, (quoting v. 275 Marron United by the initial order. trusion authorized See 74, 76, 48 S.Ct. 72 L.Ed. 231 483, 492-93, York, 413 U.S. v. New Heller (1927)). But, now, until courts have not 2789, 2794-95, 37 L.Ed.2d 745 93 S.Ct. upon compliance insisted literal with these (1973) (both pre- post-seizure safe See, Marti, e.g., words. v. United States guards assessing propriety are relevant in supra. They have asked for “reasonable seizure). the magis And the fact that particularity certainty as to the at preselected trate viewed materials identity property searched to be for chambers, garage, not neither im his Drebin, and seized.” v. 557 United States magistrate’s pugns impartiality nor (9th Cir.1977) (emphasis F.2d 1322 prose him a member of the transforms into added) (quoting Quantity United v. States Sales, Compare cution team. Lo-Ji Inc. v. Extracts, Bottles, etc., 54 F.2d 644 York, 326-28, of (S.D.Fla.1931)), U.S. at New S.Ct. denied, cert. 436 U.S. (disapproving judicial officer’s ac 2324-25 (1978). 98 S.Ct. L.Ed.2d What search) with v. participation tive Heller “reasonable,” course, depends upon York, supra judge’s (approving travel New setting, the type of material and the see issuing to theater to see film before war Kentucky, Roaden v. it). rant for (1973); S.Ct. 37 L.Ed.2d 757 Sixth, language insufficiently to hold this upon the depends also ease with which one circumstances, particular, under these adequate descrip could formulate more mean cannot ever consti- seems to that one tion, Marti, see, e.g., United States tutionally sei- authorize- a search 1268; F.2d at v. Kentucky, Roaden cf. pornography zure of items hardcore supra. are, yet, unseen, how no matter concrete specificity or Were literal technical be for the compelling cause search. day, the order of the how could we allow Suppose pornography hardcore manufac- might papers officers to search make, turers and and to dealers decide See, of a e.g., the “instruments crime?” only ship, each once. Do hardcore item States, 606 F.2d v. United operate immunity then from Grimaldi (1st Cir.) (book currency as in about immunity search? from search not Would strumentality counterfeiting), cert. prosecution de make of the wholesaler and , nied, 444 significantly manufacturer more difficult? 465 (1979); 410, 419, L.Ed.2d 386 United States v. 584, 591, Cor 393 U.S. 89 S.Ct. 21 tellesso, 28, (1st Cir.1979) (1969) 601 F.2d 33 (citing L.Ed.2d 637 United States v. (books instrumentalities), Ventresca, and records as 102, 108, 380 U.S. 741, 85 S.Ct. denied, 1072, 1016, 444 745, cert. U.S. 100 S.Ct. (1965)). 13 L.Ed.2d 684 They are to (1980); 62 L.Ed.2d 753 United States v. base their decision on- “the factual and Fuller, (4th Cir.) (“sports 441 F.2d 755 practical everyday considerations of life on papers” information as instrumentalities of prudent men, which reasonable and not le gambling operation), denied, technicians, cert. 404 gal U.S. act.” Brinegar v. United 830, 74, (1971). 92 S.Ct. 30 States, L.Ed.2d 59 160, 175, How 338 U.S. 69 S.Ct. seize, could be allowed to example, 1310, for (1949). And, 93 L.Ed.2d 1879 in re maritime navigational charts or viewing books that magistrate’s decision, courts may of, say, “instruments” “simply unlawful are to ensure magistrate that the drug smuggling? See United States v. had ‘a substantial basis for con ... (1st Cir.1984). Ayers, 725 F.2d 806 at 808 I cluding]’ probable that cause existed.” Il — nothing see gives the Constitution Gates, that at-, linois v. U.S. 103 S.Ct. hardcore pornography protection more (quoting 2332 States, Jones v. United than, against governmental say, 257, 271, searches U.S. 80 S.Ct. currency, protects

book about or that (1960)). the L.Ed.2d 697 They are respect— quite magazine “obscene but not hardcore” previously we have spoken of showing from greater mistaken seizure to a “great extent deference” magistrates’ proba to— than the smuggler maritime atlas that the ble cause determinations. See United actually did not Melvin, use. supra (quoting States v. Spinelli States, supra). United sum, In majority test that the uses strikes me as contrary prece- to reasoned principles These applied to the affidavit dent that we must follow. (reprinted Appendix A) here as require us magistrate’s

to hold the decision lawful. A person practical common sense could II. reasonably conclude on the basis of the question The “probable cause” is more affidavit that pornography hardcore would difficult, but is one that should be an likely be found on the truck. The affidavit sense, swered in terms of common not tech makes clear that regularly sup- the truck nicalities. issuing magis “The task of the plied sexually explicit shops material to simply practical, trate is to make a com the Combat Zone regularly sold sexu- whether, mon-sense given decision all the ally explicit material. applying The officer circumstances set forth the affidavit ... supplied magistrate with three “hard- there is a fair probability that contraband examples core” prior shipments. from or evidence of a crime will be found in a says affidavit that the truck had left on — particular place.” Gates, Illinois v. delivery morning. another any- Could -, -, 103 S.Ct. one legal not immersed in technicalities (1983). very “proba L.Ed.2d 527 word through read the affidavit and then bet ble” itself is not meant import technical heavily against (at containing concepts of probability, statistical re but some) least pornography? hardcore simply fers grounds to “reasonable for be lieving.” Melvin, United Agent Gilligan’s States v. affidavit did not state (1st Cir.) (citing F.2d Imperial Zurcher v. trucks had been shown to Daily, carry But, 556 & n. previous trips. it did Stanford films 98 S.Ct. 1977 & n. 56 L.Ed.2d police 525 state that Boston officers had ob- (1978)), denied, cert. served Imperial prior cartons from deliver- (1979). applying L.Ed.2d 48 In materials, ies that a variety contained concept magistrates including “are not to be confined only not magazines but also addition, ... restrictions on the use of their com newspapers and books. States, mon sense.” Spinelli v. United driver of one of the trucks was observed legal necessary judgments supports servicing “peep show” booth used films, very place— sexually the conclusion obscene materials explicit short, Imperial (as which Washington likely Street —to be found would affidavit, reprint made its shown opaque deliveries Lo-Ji we (1) Imperial magistrate. The facts that C) then, course, Appendix no below in (2) deliveries; repeatedly made wholesale warrant can issue. But Lo-Ji does magistrate the some of of materials which magistrate af- reading the from the forbid obscene; (3) shop to a that saw found showing shops specialize fidavit as that the well sexually explicit “peep shows” as sold in, sell, regularly sexually ma- explicit books; (4) through of film ma- the use as nor, terial; particularly he when is shown serviced, Imperial drivers to- chines that it him to com- examples, does forbid draw gave probable cause that the gether rise to sense, practical mon that conclusions from among films truck could contain obscene pretend fact. does not the He have to that At mini- carrying. was a the materials it shown, examples three he De- Turkish mum, agents films the the found on once light, Sex Foto Fiction No. Foto Sex materials, the other together truck Sunday in No. were discovered a Fiction to believe that provided these cause facts library. school likely films would be legally some obscene (If among there no found them. were III. truck, the of in films on inclusion films the disagreements may deep- These reflect a harmless.) See, e.g., the order would seem disagreement way er the in which about Bush, F.2d United States first, majority the seeks to reconcile Cir.1978) (5th (presence obscene materi- of fourth, majority amendment interests. The shipment cre- als one of six cartons seems to believe that the fourth amend- probable five ates cause that other cartons first into ment takes amendment interests materials); also contain obscene Castle by giving meanings such special account to Cahill, F.Supp. News Co. v. “particularly “probable or words cause” (E.D.Wis.1978) (probable cause exists to They special describing.” find subrules judgé search all items box when exam- legal categories within that into these come contents). sample” Regard- of ined “fair special subject matter, effect when a such less, magis- the basic issue is whether “obscenity,” is Yet is no at issue. there reasonably that judge trate could the affi- need so an approach. to follow mechanical davit, practical, common read as a sense The expressly fourth amendment forbids document, establishes a fair likelihood and seizures. “unreasonable” searches agents pornography find would hardcore Any inade- search seizure takes affidavit, here, The on truck. attached quate account first amendment interests My it speaks reading for itself. best automatically “unreasonable.” Given impossible say mag- for me to makes it “unreasonable,” presence word wrong. istrate was depart do a we need from common sense may majority reach a different re- concept interpretation probable it reads the affidavit sult because without cause, asking justi- an whether affidavit taking way in any into account whatsoever necessary Is it fies a search and seizure? shops reg- the officers’ statements that subrules, proliferate may some which sexually ularly explicit material and sold in- unnecessarily law enforcement threaten supplied that the mate- regularly terests, may pay little others of too relies, however, rial. The cases which amendment, heed the first and all of magistrate rely simply on the forbid unnecessary rigidity and which threaten legal judgments officers’ about whether complexity? is, particular sexually explicit material or is If not, Sales, directly question face of wheth- we obscene. Inc. v. New See Lo-Ji “unreasonable,” however, York, er the search is supra; Kentucky, 413 Roaden v. 502-03, conclude it was not. That is U.S. at at 2800. If those we must S.Ct.

«77 search, say, magistrate appropriate police ac- when say, took with warrant magis- library, of the first amendment. The house with a or a suitcase may count providing See, drugs. trate had before him an affidavit contain as well as Gilman, that searchers adequate e.g., supra; basis to believe United States v. G.I. unpro- Distributors, pornography, Murphy, supra. find hardcore Inc. v. would But Constitution, Place, in the truck. At supra (ninety tected United States v. cf. pornography unreasonably time this hardcore minute detention of suitcase same other, constitutionally long, might probable mixed with in absence warrant or material; thus, cause). procedure searchers protected, ensured that might protected through magistrate himself searching- seize would “focus judgment ly question obscenity,” about which items on the mistake Marcus v. Warrant, “hardcore.” Search U.S. at authorizing any longer before sei- showing circumstances Faced with And, any procedure zure. less restrictive material, likely existence of seizable a need police that would allow the obtain warrant, for a and a risk of first amend- unlawful, unprotected material would seem magistrate injury, ment devised two- difficult, impossible, if not to devise. First, step procedure. would be briefly segregation to allow approach detained alternatives to this flex-—a Second, likely approach hardcore items. he would ible that seeks to minimize intru- himself, authorizing upon constitutionally protected then view those items sion inter- those found hardcore. seizure of he ests—seem to consist either of rules that object yet the ends of law en- forbid serve searches for as ma- unexamined likely (and, irrespective forcement in a manner least to re- terial of cause such is legitimate law) activity. strict first amendment not the or a set of up rules that ends protective The restriction consisted of a few hours of less of first amendment inter- circumstances, A detention. several hour restriction on ests. Under these the Con- of, to, books, availability maga- and access stitution does make unlawful zines, papers, or records is not uncommon search considered here. with Hurley advised me that are familiar McManus have and regularly pornographic offer in that stores Boston the various public. these stores are located the Most of sale to for

materials commonly Street Boston in a section of in Washington stretch a along Hurley Combat duties, of their course Zone. In the known the the stores, both within and outside entered these have McManus and Combat sale Zone, what is for observed available and have so-called opinions Hurley chief McManus, and the public. the of to the regularly sale numerous stores is offer for these to business prints, which are films, and books, including magazines, items, matter law. a obscene tions three cartons sale Discount stocked. commercial during This the thereafter, Johnston, ^[646] Washington three store During to concerning cartons the out the House Hurley cartons R. license afternoon, it was public. their he I. —one known Corp., the St. ran has how police in listed plate panel carton a by Hurley The Hurley the the advised registration he located same male work, observed number panel truck, aforementioned to Kenneth bearing observed me that at to Hurley truck. and-bring ^[18418] offer 642-646 a individual a marking listing panel F. on a male in pornographic Hurley Guarino, Tuesday, stores Washington the McManus them truck on R.I. individual "United" vicinity soon advised inside are bearing ^[40] April had made came commercial supplied Hopkins materials Street —and the that take out Rhode the placed store observa- Ave., in Boston. shortly seven United license Island for at

park-in a panel Hurley the truck vicinity advised bearing me R.I. that ^[646] commercial on Washington Tuesday, license St., May Boston, plate number at he about-2:05 observed ^[89491] P.M. He observed a male individual some deliver cartons'from the truck Washington the to store at St. truck then panel proceeded The Boylston to Book Store at St., 10 Boylston Boston. The same large male individual seen to deliver ten cartons and one small carton store with this thereafter, establishment. he Shortly exited large two cartons small one white carton which he placed truck. This individual then & to The Book proceeded eight Gift at 225 St., located Shop the took Tremon't Boston. He cartons truck, from and delivered into them store. Shortly there- after, he exited store with he four cartons in the placed truck. Both Boylston Book Store and The a Book Gift are Shop pornographic known by to offer Hurley materials for sale to the longer public. However, latter is no business shop at listing time. told me he Hurley ran on R.I. commercial license and it was listed Distributors, Inc., Imperial Laurel Ave., Providence, Hill R. I. me advised Hurley P.M., that a on Tuesday, December at about bearing 1:10 he observed blue van-type R.I. commercial license plate Combat Zone area A male Boston... individual was observed to deliver one carton to United Discount Washington

at St. Book, pornographic five Inc., cartons to Zone at 10 Boylston St., a store known by Hurley offer sale for to the public. advised me Hurley that June he Tuesday, on observed bearing a van R.I. commercial Combat in the Zone. A plate

male individual Book, Inc., was observed Zone to make delivery Boylston St. me Hurley Monday, advised October he observed bearing R.I. license vehicle commercial plate park in the Washington Discount vicinity United at 64G A St. male individual vehicle, entered United Discount. This exited male indivi- store minutes, remained about twenty dual was observed servicing show film machines Hurley therein. advised peep me placing film show machines 25 cents peep operated machine, such runs a few minutes. film If film, see customer must customer desires the whole insert few advised another cents minutes. he and every Hurley have on the nature periodically McManus checked films machines, and, show in their films peep opinion, these pornography. various of hard-core invariably displayed types 1, 1977, advised me that on November he observed Tuesday, Hurley bearing R.I. the plate a vehicle commercial 44457 in Combat Zone. A male observed deliver cartons marked "J.P." individual vías to six Washington the at to establishment 694 St. advises that Hurley Inc., Inc., Distributors, Joe P. Granite Enterprises, Marble Mail House, Inc., Books, Inc., and United are listed at this Order all address. advised that these firms to distribute Hurley known pornographic material to for sale the For public. other'stores to instance, me Anthony advised that Russo holds all the Hurley corporate Inc.; P. Books, offices in both Joe and United Enterprises,_Inc., Boston, Store at 4 St., that Russo also owns Book Liberty Boylston regularly pornographic store for to offers sale the material public. me advised he Hurley Tuesday, January on observed bearing R.I. a vehicle 91826 the Combat Zone. plate commercial vehicle,

A male individual was observed to exit the and make.a Washington delivery to United Discount at 646 St. advised Hurley thereafter, he and Detective McManus entered the store. shortly the On counter in front of store employee McCarthy, was an Albert dated listing "United Discount.” January "Imperial" invoice I 1978 to from registered a plate ran on found it was and Guarino, Providence, Ave., to Kenneth F. 208 Laurel Hill R. I. me that at Hurley Tuesday, advised on about January bearing a A.M., plate 10:30 he observed vehicle R.I. commercial Washington to at 673 91826 Eros park vicinity Theatre of.the vehicle, A was and St. male individual observed to exit at the deliver Washington Inc., to Book St. Club, one box 200 696 Hurley regularly pornographic advised me that this offers establishment the public. sale to The male was then observed to deliver nine cartons individual Washington individual was at St. The same to United Discount 646 Store at twelve Book 10 Boylston then seen to deliver cartons He was next cartons. store with three He exited this St. Boylston observed said Theatre, and enter theatre Eros Walk back to the holding male individual in his hand. This a of piece paper while hair, 25 to white,- beard, dark 5’9", short be about appeared wearing balding a fur-lined head, back of his old, on the years acket;. j brown McManus entered P.M., Detectives and Hurley At about 2:00 Washington Albert McCarthy employees St. Store United Discount at magazines putting into observed and Robert were to be Murray sealing marked Cartons covers, covers. said transparent plastic sealing were Murray "United Discount" were open, McCarthy magazines both McManus these cartons. and Hurley taken from various contained cartons, they see that observed .the could open magazines, Among McCarthy items books newspapers. Delight." magazine was "Turkish seen to seal was a entitled engaging magazine and female front cover a male depicted engaging cunnilingus, female while- cover male and back showed a sealing was McCarthy observed. in intercourse. On the counter to where close an publications, invoice marked was "Imperial" A.M., at Tuesday, January On about 11:34 I observed bearing van truck R.I. commercial plate Ford a blue parked Washington St., Eros Theatre at 673 in front Boston. I Washington St., at 673B "adult book store" entered an observed on the next to a store floor employee. cartons Within piled four weighing minutes, a male about 250 pounds couple appeared white male 6'0", a check to another white who about and presented old, pounds, black hair with thin black beard. years receiving left white male after afore- premises latter This diagonally Ford van check. I observed the blue driven mentioned Washington St., street and the white male who across had received cartons aforementioned check was observed to deliver Daniel three Washington Agent Quigley at 646 St. Fellow F.B.I. J. observed same white male deliver four cartons then to 12-14 St., Boston. Boylston Thursday, On I went to the United Discount January Washington St., at 646 Boston. this time store Offered sale numerous sealed transparent plastic envelopes, including magazine Delight." entitled "Turkish I one purchased Delight" "Turkish I for front reviewed contents copy $6.00. magazine. On cover a male a and female and female are are shown cunnilingus: engaging engaging back, on the male magazine in intercourse. acts emphasizing The remainder numerous displays angle cunnilingus fellatio, camera intercourse genitalia as much as possible. Agents Kavanagh and Edward advised Reilly Fellow F.B.I. Philip Tuesday, January me that were on surveillance Distributors, Inc., at 208 Laurel Hill they the-vicinity Imperial A.M., R. At Providence, I. about 9:20 observed a van- Ave., bearing being R.I. plate of commercial loaded with type cartons This loading Distributors, Inc. the dock area Imperial from leaving was observed 208 Ave. truck Laurel-Hill at about A.M. 9:38 Kavanaugh and the truck across the- state line I into Reilly followed . Massachusetts, A.M., and into Boston. At about 10:56 observed up bearing Washington R.I. a blue van commercial license 44457 turn into Washington front of Boston, from Kneeland St. It 694 St., parked bring St. The driver was observed three cartons four into Washington Washington The van 694 St. then was driven to 673 ^t. Washington then were delivered to 673B St. I entered Three cartons Washington St., and observed a male 673B clerk behind the counter conversing "I the I heard the clerk a telephone. say, on from Distributors." Imperial C.O.D. van to deliver one of the R.I. was next observed The driver LaGrange book on drove carton to a store Street. He then to 646 Washington St., where he delivered four cartons. I then entered Washington St. I observed that Boston United Discount Detectives at 646 Police and McManus were within the store. McManus Hurley already just the delivered. The showed me the cartons R.I. driver the the attendant's counter Cartons were floor A store near piled up-on removing was observed rear of the store. clerk and he counting magazines was seen the cartons, of the from -one magazine magazines. two the the I observed of titles.on counting. "Sex Fiction No. 1" clerk was The Foto titles "Sex Foto Fiction 2." No. Agent Fellow F.B.I. A. James advised Yacobucci me that on about A.M., at 10:30 February he went to United Discount Washington St., at Boston, and at rear store on a

magazine magazines he rack saw displayed entitled Foto "Sex Fiction No. 1" and "Sex Foto Fiction 2." magazines No. He purchased two each. Yacobucci turned $6.00 over to me. I have magazines. both reviewed cur.nilingus They.both numerous acts display fellatio, emphasizing genitalia Intercourse with camera much possible. Tuesday, advised me that on Hurley February Detective bearing a R.I. commercial plate he truck 91826 parked observed at Washington Boston, St., Thereafter, about 1:00 P.M. Hurley take cartons truck, white male seven from observed a deliver Washington St. white made The male then three them to 646 delivery delivering eighteen St., some cartons. Boylston to 10 He trips with cartons. St. five Boylston exited Agent me that Philip Tuesday, advised Reilly Fellow was on at 208 he surveillance Laurel duty Hill February bearing Providence, He I. he observed Ave., R. stated truck with plate commercial loaded about or 40 cartons R.I. loading area Distributors, dock Inc. Imperial from at 9:35 truck about A.M. departed Reilly followed truck over line state into At 11:00 I A.M., Massachusetts. about observed bearing Washington a truck R.I. turn into plate commercial A St., white male Washington Boston. driver' observed to deliver nine Washington at 673B St., cartons ten cartons at 646 St., LaGrange St., at 10 Boylston thirteen cartons and two cartons at 18 Boston. St., all Agent Kavanagh F.B.I. Edward Fellow me advised today he a.m., at 8:13 was on surveillance at Imperial Distributors, Inc., 203 Laurel Hill R.r-. He Ave., Providence, observed truck bearing be'ing commercial R.I. loaded plate cartons at loading Distributors Imperial dock. The truck left Imperial at Distributors about 9:32 a.m. truck was' observed to cross line foregoing.reasons, state into Massachusetts. For bearing I believe truck R.I. commercial plate contains magazines, obscene, lewd, lascivious, books, filthy newspapers, other prints, that matter of an indecent and immoral character, said has said materials transported interstate commerce sale purpose distribution;.all violation Title United States Section Code,

APPENDIX B Warrant Lo-Ji Sales Search (reproduced Supreme from - 26a) App. 8a

Record LOCAL CRIMINAL COURT Waway County Orange, Town anda, of New

State York Honorable John O'Connor,

Issuing Judge. Any To Police the New York Officer State Police hereby You are authorized and directed search single story following premises: a brown wood frame build- directly Route located on 17M ing “Adult Store”, named Waway- Town the Chadwick Motel from across Orange New County, York. anda, for and hereby directed to search authorized are

You following property, wit: seize picture film entitled ) of 8mm motion reels

1. 200 foot and Duke. Linda super picture reels ) 200 foot 8mm motion film en-

titled Dinner. rob Four ) following

3. The items that the independently Court has possessed be determined to in violation of Article 235 of the Penal Law: originally

[In warrant space issued, thfe this blank. After search, was left it was filled multi-page list items found party.] search days more than must be executed This warrant pursuant hereto any property seized issuance and after the un- to the without delivered shall returned necessary delay. Warrant hereby specially determines

The Court charged any or persons arrested shall constitute notice to entitled imme- pursnant to its execution, so that a adversary practicable, hearing, as soon diate mate- not the as whether be made determination can of Article possessed violation rial seized Penal Law. York New Goshen,

Dated:

June 25,1976 John O’Connor

/s/ Local Justice APPENDIX C

Lo-Ji Sales Affidavit

(reproduced Supreme from - App.

Record 7a) at 5a COURT CRIMINAL LOCAL Wawayanda Town of

Affidavit

In Matter

—of— Application A. Hurbanek York New J. of Inv. Warrant to Search Police, Search State Following single story frame wood A brown Premises: 17M on Route building “Adult located named Store”, Town directly Motel in the from Chadwick across County, Orange Wawayanda, New York. of New York,

State

County Orange, ss.i duly being deposes sworn, A.

I, Johannes Hurbanek, says: public am servant applicant herein 1. I am the Procedure Section specified Law, kind Criminal Investigator Bureau my with the 690.05(1), being title Police. York Investigation New State Criminal certain believe cause 2. There is reasonable fol- may found in property described hereinafter building frame story wood lowing single brown premises: a directly across 17M Route located named “Adult Store”, Wawayanda, Town of Motel from the Chadwick County, Orange York. New property sought

3. prop- referred to be seized is .The erty possessed that has been used and is purpose for the being used Obscenity to commit an offense to wit: in the Degree, Second in violation of Section 235.05(1) Promoting Law, Penal Obscene Material.

3. support your deponent’s assertion to the existence reasonable following cause, facts are of- upon personal knowledge fered based by your as attested to deponent. personally On present June I (Adult premises Store) the aforedescrihed purchased from Alexander Mandakis picture reel nf 8mm one motion approximately film length 200 feet called Linda Upon viewing Duke. picture this reel of motion I film, observed it contain ac- acts of female masturbation and involving beastiality tivities participant a female attempted engage movie in acts sexual inter- course Shepard dog. with a German type purchased I also super a reel of picture approximately 8mm motion film length feet Upon viewing Four entitled fob Dinner. this reel of film, I observed acts sexual intercourse, sodomy, cunnilingus, These fellatio, masturbation. my presently reels of film possession are and are avail- may viewing able for inde- so that pendently portrayed determine the acts whether statutory prohibition come within the under Article 235 of the Penal Law. premises, inWhile I observed what I reason-

able cause to I believe or similar films. also same premises observed in the film, reels other my objects. upon my other con- Based observations, me that versations with Mandakis indicated to Mr. magazines portrayed the films and as de- similar activities scribed have reason above, I believe this material being possessed in violation Article 235 of Penal of the Law State New York. grounds foregoing represents my

5. The belief. respectfully requested 6. It is further Court accompany deponent of the exectuion of the time applied independently warrant for so that determine it can any of applicable legal principles under the whether or prem- present additional in the aforedescribed possessed of the law and ises is fact there- violation subject to seizure. fore issue your deponent requests that

Wherefore, of the directing for and seizure warrant search search following property: entitled film picutre ) 8mm motion foot reels of

1. 200 Linda and Duke. picture en- ) film super motion foot 8mm

2. 200 reels titled Four for Dinner. may independently ) Any the Court other material

3. in violation viewing possessed upon to be determine Penal Law. Article A. J. Hubbanbk

/s/ A. Hurbanek Johannes me this before Sworn to day of June, TjJ.

/s/ O’Connor, John

Case Details

Case Name: United States v. Kenneth Guarino

Court Name: Court of Appeals for the First Circuit

Date Published: Feb 28, 1984

Citation: 729 F.2d 864

Docket Number: 81-1301

Court Abbreviation: 1st Cir.