NCJ Number
25289
Journal
Criminal Justice Quarterly Volume: 1 Issue: 2 Dated: (SPRING 1973) Pages: 80-90
Date Published
1973
Length
11 pages
Annotation
A REVIEW OF RELEVANT COURT DECISIONS ON THE SEIZURE OF EVIDENCE IN CONNECTION WITH THE PROSECUTION OF OBSCENITY CASES, WITH EMPHASIS ON THE ISSUES IN PROTECTION OF THE FIRST AND FOURTH AMENDMENT RIGHTS OF THE INDIVIDUAL.
Abstract
THE COURTS IN CERTAIN INSTANCES HAVE INSISTED ON AN ADVERSARY HEARING PRIOR TO SEIZURE OF ALLEGEDLY OBSCENE MATERIAL TO DETERMINE IF IN FACT THIS MATERIAL WARRANTS SEIZURE. HOWEVER, THE INTERESTS OF THE STATE IN SECURING EVIDENCE FOR PROSECUTION MUST ALSO BE SERVED, ESPECIALLY WHERE PRIOR NOTIFICATION IN THE FORM OF A HEARING MAY RESULT IN ALTERATION OR DESTRUCTION OF EVIDENCE. A DISTINCTION IS MADE BETWEEN WHAT IS ESSENTIALLY A LIMITED SEIZURE OF EVIDENCE NECESSARY FOR CRIMINAL PROSECUTION AND A MASS SEIZURE WHICH IN EFFECT INTENTIONALLY RESTRAINS DISSEMINATION OF PRESUMPTIVELY CONSTITUTIONALLY PROTECTED MATERIALS. WHERE EVIDENCE IS TAKEN PURSUANT TO A LIMITED SEIZURE, THE DEFENDANT'S CONSTITUTIONAL RIGHTS ARE PROTECTED THROUGH THE FOURTH AMENDMENT'S REQUIREMENT THAT THE SEIZURE BE REASONABLE. THE PUBLIC'S RIGHT TO THE AVAILABILITY OF PRESUMPTIVELY PROTECTED MATERIAL IS RESPECTED SO FAR AS IS POSSIBLE BY THE LIMITED NATURE OF THE SEIZURE. IT IS STATED THAT THE GENERAL RULE OF SPECIFICITY OF DESCRIPTION IN SEARCH WARRANTS, INTENDED TO OBVIATE THE POSSIBILITY OF THE UNBRIDLED AUTHORITY OF A GENERAL WARRANT, TAKES ON ADDED SIGNIFICANCE WHEN THE ACTIVITY INVOLVED IS PRESUMPTIVELY PROTECTED UNDER THE FIRST AMENDMENT. A COMPARISON OF THE REQUIRED DESCRIPTION FOR THE SEIZURE OF ARTICLES ASSOCIATED WITH DIFFERENT CRIMES IS PROVIDED, SHOWING THE GREATER SPECIFICITY REQUIRED IN OBSCENITY CASES. SOME GUIDANCE ON THE PROPER PHRASING OF SEARCH WARRANTS IN THESE CASES IS INCLUDED. (AUTHOR ABSTRACT MODIFIED)