SEARCHES IMPLICATING THE FIRST AMENDMENT
The seizure of films or books on the basis of their content clearly implicates concerns not present in other seizures. The Supreme Court outlined the results of these concerns:
“…[W]e have required that certain special conditions be met before such seizures may be carried out. In Roaden v. Kentucky, 413 U.S. 496, 37 L.Ed.2d 757, 93 S.Ct. 2796 (1973), for example, we held that the police may not rely on the ‘exigency’ exception to the Fourth Amendment’s warrant requirement in conducting a seizure of allegedly obscene materials, under circumstances where such a seizure would effectively constitute a ‘prior restraint’. In A Quantity of Books v. Kansas, 378 U.S. 205, 12 L.Ed.2d 809, 84 S.Ct. 1723 (1964), and Marcus v. Search Warrant, 367 U.S. 717, 12 L.Ed.2d 809, 84 S.Ct. 1723 (1961), we had gone a step farther, ruling that the large-scale seizure of books or films constituting a ‘prior restraint’ must be preceded by an adversary hearing on the question of obscenity. In Heller v. New York, 413 U.S. 483, 37 L.Ed.2d 745, 93 S.Ct. 2789 (1973), we emphasized that, even where a seizure of allegedly obscene materials would not constitute a ‘prior restraint,’ but instead would merely preserve evidence for trial, the seizure must be made pursuant to a warrant and there must be an opportunity for a prompt post-seizure judicial determination of obscenity. And in Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 20 L.Ed.2d 1313, 88 S.Ct. 2103 (1968), we held that a warrant authorizing the seizure of materials presumptively protected by the First Amendment may not issue based solely on the conclusory allegations of a police officer that the sought-after materials are obscene, but instead must be supported by affidavits setting forth specific facts in order that the issuing magistrate may ‘focus searchingly on the question of obscenity”. Marcus, at 732, 6 L.Ed.2d 1127, 81 S.Ct. 1708. See also Stanford v. Texas, 379 U.S. 476, 486, 13 L.Ed.2d 431, 85 S.Ct. 506 (1965).” New York v. P.J. Video, Inc., 475 U.S. 868, 106 S.Ct. 1610, 89 L.Ed.2d 871, 879 (1986).
Nevertheless, the application for a warrant authorizing seizure of presumptively protected materials is to be evaluated by under the same standard of probable cause used to review warrant applications generally. P.J. Video, Inc., 475 U.S. at 868.
