Petitioner was manager of a movie theater where a sexually explicit film was exhibited. After police officers saw part of the film, an assistant district attorney requested a New York Criminal Court judge to view it. Upon seeing the entire performance, the judge signed warrants for seizure of the film and for petitioner's arrest on the ground that the film was obscene. Exhibition of an obscene film violates New York Penal Law § 235.05. No pretrial motion was made for return of the single film copy seized or for its suppression as evidence. There was no showing below that the seizure prevented exhibition of the film by use of another copy, and the record does not indicate whether another copy was available. Petitioner's trial was held 47 days after his arrest and the film seizure, and he was convicted. He argued that seizure of the film without a prior adversary hearing violated the Fourteenth Amendment. He also challenged his conviction on substantive grounds, arguing that he was convicted under standards of obscenity both overbroad and unconstitutionally vague, and that films shown only to consenting adults in private are constitutionally protected. The New York Court of Appeals affirmed his conviction, holding that an adversary hearing prior to seizure of the film was not required and that an ex parte warrant, issued after a judicial determination of obscenity, was constitutionally sufficient.

READ MORE