# Marcus v. Search Warrants of Property at 104 East Tenth Street Kansas City Missouri

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## Concurring Opinion

    Hugo Black
United States Supreme Court
367 U.S. 717
Marcus v. Search Warrants of Property at 104 East Tenth Street Kansas City Missouri
No. 225. Argued: March 30, 1961. --- Decided: June 19, 1961
Proceeding under certain Missouri statutes, as supplemented by a rule of the State Supreme Court, a city police officer appeared in a state trial court and filed a sworn complaint that each of the appellants, a wholesale distributor of magazines, newspapers and books and the operators of five retail newsstands, kept "obscene" publications for sale. In an ex parte proceeding, without granting appellants a hearing or even seeing any of the publications in question, and without specifying any particular publications, the trial judge issued search warrants authorizing police officers to search appellants' premises and seize all "obscene" material. Different police officers searched appellants' premises and, after hasty examination, seized all copies of all publications which, in their judgment, were obscene. Nearly two weeks later, appellants were given a hearing, at which they moved to quash the search warrants, for return of the seized publications and for suppression of their use in evidence, on the ground that their seizure violated the protection of free speech and press guaranteed by the Fourteenth Amendment. These motions were denied and, over two months after the seizure, the trial court found that 100 of the seized publications were obscene and it ordered their destruction; but it also found that 180 other seized publications were not obscene and it ordered them returned to their owners. The State Supreme Court sustained the validity of these procedures, and an appeal was taken to this Court. Held:
* This Court had jurisdiction of the appeal under 28 U.S.C. 1257(2). P. 721.
* The search and seizure procedures applied in this case lacked the safeguards to nonobscene material which the Due Process Clause of the Fourteenth Amendment requires to prevent erosion of the constitutional guaranties of freedom of speech and press, and the judgment is reversed. Pp. 729-738.
    (a) Under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity without regard to the possible consequences for constitutionally protected speech. Pp. 729-731.
    (b) As applied in this case, Missouri's procedures confided to law enforcement officials broad discretion to seize allegedly obscene publications without adequate safeguards to assure nonobscene material the constitutional protection to which it is entitled. Pp. 731-733.
    (c) Kingsley Books, Inc., v. Brown, 354 U.S. 436, distinguished. Pp. 734-738.
334 S. W. 2d 119, reversed.
Sidney M. Glazer argued the cause for appellants. With him on the brief were Morris A. Shenker and Bernard J. Meliman.
Fred L. Howard, Assistant Attorney General of Missouri, argued the cause for appellees. With him on the brief were Thomas F. Eagleton, Attorney General, and John C. Bauman, Assistant Attorney General.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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