Lee Art Theatre, Inc. v. Virginia/Dissent Harlan

Mr. Justice HARLAN, dissenting.

A police officer filed a sworn affidavit that he had personally witnessed the commission of a crime, to wit, the possession and exhibition of obscene motion pictures. He was granted a warrant to seize the pictures, and did so.

In Marcus v. Search Warrants of Property at 104 East Tenth St., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127, officers were given a general warrant to seize obscene materials, pursuant to which they selected and seized 11,000 copies of 280 publications most of which were later found nonobscene. With barely a nod to the difference between 11,000 books and magazines selected for seizure by the officers themselves after a warrant had been issued and two obscene movies named in the affidavit, the Court reverses the present conviction on the authority of Marcus.

I think that Marcus was correctly decided, but I cannot discern its application here. Police officers may not be given carte blanche to seize, but they may certainly seize a specifically named item on probable cause, before the work 'taken as a whole' has been adjudicated obscene. Any other rule would make adjudication not merely 'not as easily arrange(d)' in the case of movies but quite impossible. If the Court means only that the officer should not merely say that he has seen a movie and considers it obscene, but should offer something in the way of a box score of what transpires therein, I consider it absurd to think that a magistrate, armed with the luminous guidance this Court has afforded, will be thus able to make a better judgment of probable obscenity.

Since the petitioner does not contend that the movies in question here were not obscene, I find it unnecessary to reach the point relied on by my Brothers BLACK, DOUGLAS, and STEWART.