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Federal appeals court upholds Missouri law on search warrants in obscenity cases

By David Hudson
First Amendment Center
03.02.99

The Missouri law establishing procedures law enforcement officials must follow before obtaining a search warrant for obscene materials does not violate the First Amendment, the 8th U.S. Circuit Court of Appeals ruled recently.

B.A.P. Inc., a company that operates a business known as California Erotic Novelties, filed a federal lawsuit in 1997 in an effort to strike down the law. B.A.P. charges that the law does not contain adequate procedural safeguards to protect non-obscene materials from government seizure.

If the purpose of a search is merely evidentiary, the law allows a judge to issue a search warrant without conducting a hearing to determine whether the challenged materials are obscene.

According to B.A.P., the measure allows law enforcement officials to seize virtually the entire inventory of a store. The purpose of such a comprehensive seizure, according to the company, is not just to gather evidence but to restrain the free flow of material presumably protected under the First Amendment.

B.A.P. sued after officers obtained a search warrant and in September 1997 seized over 4,000 videos and 2,000 magazines from California Erotic Novelties. The following month, the business and three of its employees were charged under state law with promoting obscenity.

After a federal district court rejected B.A.P.'s constitutional challenges, the company appealed to the 8th Circuit. Late last month, the appeals court issued its opinion in B.A.P., Inc. v. McCulloch, which affirmed the lower-court opinion upholding the statute.

"There must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections," wrote Judge Richard S. Arnold for the 8th Circuit.

"No such danger exists in this case," Arnold wrote, because "the danger is overzealous prosecution, not a defect in the statute."

The appeals court also rejected the assertion that the statute was unconstitutional because it failed to provide a procedural mechanism for a party to request a prompt, post-seizure judicial hearing to determine whether the seized materials were obscene.

The appeals court rejected this claim in part because the company had never requested such a hearing. "We refuse to invalidate a statute for its lack of a particular safeguard when the party making the request was never denied relief," the appeals court wrote.

Murry A. Marks, attorney for B.A.P., called the decision a "dangerous precedent."

"This statute authorizes mass seizures of presumptively protected material like videos, books and magazines on the pretext that all the material is needed as evidence in a criminal prosecution, when in fact that is simply not true," he said.

Marks said a decision had not been made whether to appeal the decision.


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