Filed: August 24, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-2206(L)

(CA-89-2231-B)

Larry C. Hicks, etc., et al,

Plaintiffs - Appellees,

versus

Joseph I. Cassilly, etc., et al,

Defendants - Appellants.

ORDER

The court amends its opinion filed July 27, 1998, as follows:

On page 11, first paragraph, line 3 -- the following footnote

is added:

4 The district court also denied summary judgment to Mary

Teresa Garland, an Assistant State’s Attorney in

Cassilly’s office. Garland did not participate in

obtaining the search warrants, and there is no evidence

suggesting that she had any role in Cassilly’s decision

to file a civil complaint after the warrants were

executed. Accordingly, the district court is also

instructed to enter summary judgment for Garland on

qualified immunity grounds.

For the Court

/s/ Patricia S. Connor

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY C. HICKS, Director-Trustee

for 3011 Corporation; L. R. NEWS,

INCORPORATED, t/a Edgewood Books,

Plaintiffs-Appellees,

and

3011 CORPORATION, t/a US Books;

JOSEPH J. LAVODIE; PATRICIA A.

FULTON; PAUL EDWARD KOENIG;

PATRICIA ANN MCGINNIS;

WILLIAM L. PALMER, JR.; WILLIAM

ENSOR; EDWARD E. CAGE,

Plaintiffs,

v.

JOSEPH I. CASSILLY, Individually and

No. 97-2206

as States Attorney, Harford County,

Maryland; M. TERESA GARLAND,

Individually and as Assistant States

Attorney, Harford County,

Maryland,

Defendants-Appellants,

and

ROBERT COMES, in his official

capacity as Sheriff for Harford

County; DOMINIC J. MELE,

Individually; JESSE BANE; J. R.

TAYLOR; THOMAS GOLDING; ROY

MITCHELL; MICHAEL BARLOW; FRED

SHERRON; JAMES STONESIFER;
JAMES M. HARKINS; EDWARD

HOPKINS; EDWARD KECK; JAMES

WAY, Individually and as Deputy

Sheriffs, Harford County, Maryland;

JOHN KUTZ; AL HAMLETT, in their

official capacities only as members

of the Federal Bureau of

Investigation, Bel Air Field Office;

BOB JONES, in his official capacity

only as U.S. Postal Inspector; JOHN

PHILIP, INCORPORATED; RAYMOND

ASTOR,

Defendants.

LARRY C. HICKS, Director-Trustee

for 3011 Corporation; L. R. NEWS,

INCORPORATED, t/a Edgewood Books,

Plaintiffs-Appellees,

and

3011 CORPORATION, t/a US Books;

JOSEPH J. LAVODIE; PATRICIA A.

FULTON; PAUL EDWARD KOENIG;

PATRICIA ANN MCGINNIS;

No. 97-2219

WILLIAM L. PALMER, JR.; WILLIAM

ENSOR; EDWARD E. CAGE,

Plaintiffs,

v.

J. R. TAYLOR, Individually and as

Deputy Sheriff, Harford County,

Maryland,

Defendant-Appellant,

and

 2
JOSEPH I. CASSILLY, Individually and

as States Attorney, Harford County,

Maryland; M. TERESA GARLAND,

Individually and as Assistant States

Attorney, Harford County,

Maryland; ROBERT COMES, in his

official capacity as Sheriff for

Harford County; DOMINIC J. MELE,

Individually; JESSE BANE; THOMAS

GOLDING; ROY MITCHELL; MICHAEL

BARLOW; FRED SHERRON; JAMES

STONESIFER; JAMES M. HARKINS;

EDWARD HOPKINS; EDWARD KECK;

JAMES WAY, Individually and as

Deputy Sheriffs, Harford County,

Maryland; JOHN KUTZ; AL HAMLETT,

in their official capacities only as

members of the Federal Bureau of

Investigation, Bel Air Field Office;

BOB JONES, in his official capacity

only as U.S. Postal Inspector; JOHN

PHILIP, INCORPORATED; RAYMOND

ASTOR,

Defendants.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Walter E. Black, Jr., Senior District Judge.

(CA-89-2231-B)

Argued: May 7, 1998

Decided: July 27, 1998

Before MICHAEL and MOTZ, Circuit Judges, and

FRIEDMAN, United States District Judge for the

 5130 35 7 Eastern District of Virginia, sitting by designation.

 3
Reversed and remanded with instructions by unpublished per curiam

opinion.

_________________________________________________________________

COUNSEL

ARGUED: Andrew Howard Baida, Assistant Attorney General, Baltimore, Maryland; Jefferson Lee Blomquist, Deputy County Attorney,

DEPARTMENT OF LAW, Bel Air, Maryland, for Appellants. William Edward Seekford, Towson, Maryland, for Appellees. ON

BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Baltimore, Maryland, for Appellants Cassilly and Garland.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The plaintiffs, two adult bookstores and their owners and employees (collectively, Hicks1), sued under 42 U.S.C. § 1983 because of

allegedly unconstitutional searches of the premises of the bookstores.

The searches resulted in the seizure of a large quantity of allegedly

obscene materials. The searches were conducted pursuant to warrants

obtained by Deputy Sheriff J. R. Taylor. The applications for the warrants were reviewed by Harford County (Maryland) State's Attorney,

Joseph Cassilly. Hicks alleges that Taylor and Cassilly violated the

United States Constitution by obtaining the warrants without first

requesting a pre-seizure adversarial hearing. Taylor and Cassilly

argue that they are entitled to qualified immunity because it was not

clearly established of the time of the searches that a seizure of alleg-

_________________________________________________________________

1 We refer to all of the plaintiffs as "Hicks" to simplify our writing.

Hicks is actually plaintiff Larry C. Hicks, the Director-Trustee for 3011

Corp. (t/a US Books), whose charter has been revoked.

 4
edly obscene materials as evidence in a criminal case required a preseizure adversarial hearing. The district court denied qualified immunity to Taylor and Cassilly on the ground that the warrants violated

the constitutional requirement for a pre-seizure hearing. We find that

Taylor and Cassilly did not violate clearly established law in applying

for warrants to seize allegedly obscene material without a pre-seizure

hearing. We therefore reverse the order of the district court and

remand with instructions that Taylor and Cassilly be granted summary judgment on the grounds of qualified immunity.

I.

Early in 1989 the State's Attorney's Office of Harford County,

Maryland, began an investigation of two adult bookstores located

within the county, US Books and Edgewood Books. The State's

Attorney, Joseph Cassilly, believed that these bookstores were displaying sexually explicit materials in violation of Md. Ann. Code art.

27, § 416D. That statute bans the display for advertising purposes of

"any . . . visual representation or image of a person or portion of a

human body that depicts sadomasochistic abuse, sexual conduct or

sexual excitement, or any verbal description or narrative account of

these activities or items." The Maryland Court of Appeals has interpreted this provision to incorporate the principles of the United States

Supreme Court's obscenity jurisprudence. See Smiley v. State, 450

A.2d 909 (Md. 1982). Violation of § 416D is a criminal offense, punishable as a misdemeanor.

As part of this investigation, Deputy Sheriff Taylor visited both

bookstores, noted how the materials were displayed, and purchased

two magazines at each store. On the basis of this investigation, Taylor

drafted affidavits to support applications for search warrants for the

bookstores. Taylor submitted these to Cassilly, and upon receiving

Cassilly's approval, filed the applications and supporting affidavits

with a state judge on June 9, 1989.

Taylor's affidavit regarding the search warrant for US Books

opened by reciting the statutory requirements of§ 416D, the criminal

provision. It then described with specificity the building where the

book store was located. Finally, the affidavit went into extensive and

explicit detail about the depictions on the front and back covers of the

 5
two magazines Taylor had bought (entitled "She-Male Superstar" and

"She-Male In Control"). Photostatic copies of the covers of these

magazines were attached to the affidavit. Similar references and representations were made in the affidavit supporting the application for

a warrant for Edgewood Books. Based on these affidavits, Judge

Cypert Whitfill issued warrants authorizing the authorities to "seize

and remove all books, magazines, photographs, films, poster[s], and

other items or materials that are displayed for advertising purposes

which depict sadomasochistic abuse, sexual conduct, and sexual

excitement." The judge indicated in the warrants that he was "satisfied

that there is probable cause to believe" that such items were illegally

displayed. There was no prior adversary hearing before the warrants

were issued.

On June 13, 1989, these search warrants were served on the two

bookstores. Some 1,130 magazines and other materials were seized

from US Books, and 765 items were seized from Edgewood Books.

On July 18 Cassilly filed a civil complaint in state court against the

bookstores and sought a hearing to determine whether the bookstores

possessed obscene materials. The complaint asked that the materials,

if found to be obscene, be enjoined from dissemination, confiscated,

and destroyed pursuant to Md. Ann. Code art. 27,§ 418A. This complaint was dropped before a determination of obscenity was made. In

1990 Cassilly filed criminal charges under § 416D against the bookstores and their employees. Those criminal charges resulted in either

acquittals or reversals on appeal.

Hicks filed this § 1983 action against several law enforcement officers or officials involved in the June 13, 1989, seizure, including Cassilly and Taylor. This suit included allegations that Cassilly and

Taylor violated the Constitution by applying for search warrants to

seize material from the bookstores without a pre-seizure hearing. The

defendants moved for summary judgment based on qualified immunity. The district court granted qualified immunity to several of the

defendants but denied it as to Cassilly and Taylor on the ground that

the applications for the search warrants violated clearly established

law that a mass seizure of allegedly obscene materials must be preceded by an adversary hearing. Cassilly and Taylor appeal.

 6
II.

In order to overcome a claim of qualified immunity, a plaintiff

must show that it was clearly established at the time of the alleged

violation that the defendant's actions were unconstitutional. See

Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998) (en banc). We

therefore focus our inquiry on the state of the applicable law in June

of 1989.

A.

"[T]he general rule under the Fourth Amendment is that any and

all contraband, instrumentalities, and evidence of crimes may be

seized under probable cause." Fort Wayne Books, Inc. v. Indiana, 489

U.S. 46, 63 (1989). The rule is different for the seizure of allegedly

obscene material, however. While obscene material enjoys no First

Amendment protection, until an obscenity determination is made, targeted material is presumed to be protected by the First Amendment.

Applying the general rule to the seizure of allegedly obscene material

would therefore be an unconstitutional prior restraint on (presumptively) protected expressive material. Accordingly, the Supreme Court

has established "rigorous procedural safeguards[that] must be

employed before expressive materials can be seized as `obscene.'"

See id. at 62 (citing Marcus v. Search Warrant, 367 U.S. 717 (1961)).

In order to satisfy these safeguards, a warrant for the mass seizure of

allegedly obscene material with the purpose of taking that material

out of circulation or preventing its display may not issue without a

prior adversarial hearing. See Quantity of Books v. Kansas, 378 U.S.

205, 210 (1964).2

On the other hand, the Supreme Court has recognized that this right

to a pre-seizure adversarial hearing is not absolute. In Heller v. New

York, 413 U.S. 483 (1973), police officers obtained a warrant for the

seizure of an allegedly obscene movie based on a criminal antiobscenity statute. This seizure was intended to preserve the film as

evidence in the criminal trial that followed. The Court refused to

_________________________________________________________________

2 Hicks does not dispute that if this special rule were not in the picture,

the warrants were supported by and could have been issued on probable

cause.

 7
invalidate the seizure despite the defendant's claims that he was entitled to a pre-seizure adversarial hearing. The Court found that seizing

an allegedly obscene work "for the bona fide purpose of preserving

it as evidence in a criminal trial" does not contain the same danger

of prior restraint as a seizure with intent to destroy that material. Id.

at 492. Accordingly, the Court concluded that the seizure of allegedly

obscene material to preserve it as evidence in a criminal proceeding

does not require a pre-seizure adversary hearing. See id. at 490; see

also New York v. P.J. Video, Inc., 475 U.S. 868, 873 (1986); Fort

Wayne Books, 489 U.S. at 63 ("[A] single copy of a book or film may

be seized and retained for evidentiary purposes based on a finding of

probable cause").

Therefore, the law was clearly established in June 1989 to this

extent: a seizure of allegedly obscene materials for the purpose of

destroying or halting their distribution required a pre-seizure adversarial hearing, while the same seizure for the purpose of preserving

evidence for a subsequent criminal trial did not require such a hearing. We therefore examine Hicks's allegations against both Cassilly

and Taylor against this established principle.

B.

In this case the record reveals that State's Attorney Cassilly

launched his investigation to find evidence of violations of § 416D,

a criminal statute. In an affidavit supporting his motion for summary

judgment, Cassilly indicated that "the sole objective of the State's

Attorney's office [in authorizing the search] was to obtain evidence

of criminal violations of Art. 27, § 416D." Cassilly also testified in his

deposition that the whole purpose of the seizure under the search warrants was to obtain evidence for use at a criminal trial. See, e.g., J.A.

479 (noting that the search warrant was focused to look for "violations of § 416(d) [sic]"). Cassilly indicated that he "didn't have a

problem" with Hicks selling the pornographic material, but Cassilly

simply intended to stop its display in a manner that violated the criminal statute. This testimony is uncontradicted in the record.

Hicks points to only one matter which he claims supports an inference that Cassilly applied for the warrants with the intent to destroy

the materials. Hicks highlights the fact that one month after the June

 8
13 search of the bookstores, Cassilly filed a civil complaint for

injunctive relief under Md. Ann. Code art. 27, § 418A, which, if

granted, would have led to the destruction of any materials found to

be obscene. Hicks argues that complaint should be read to infer an

intent by Cassilly to use the search warrant as a tool to seize allegedly

obscene material from the bookstores in order to destroy it later. We

disagree.

The complaint does not make clear whether its target includes the

material seized under the search warrants on June 13, 1989, as Hicks

suggests it does, or whether it is directed solely at other material

which Hicks allegedly continued to display after the seizure. Since we

are bound to construe the facts in favor of Hicks (the non-movant),

we will assume that the material seized on June 13 is targeted by the

complaint, even though Cassilly vigorously disputes this charge. The

complaint also, however, asks the state court to"Order [Hicks] to

Show Cause why the requested injunction should not be granted and

the matters seized and destroyed." This indicates Cassilly's intent to

submit to a pre-seizure adversarial hearing on all material to be seized

and destroyed under the complaint.3 Even assuming that the complaint covered those items already seized on June 13, those items

could not have been destroyed pursuant to the complaint before a

hearing was conducted. We cannot reasonably infer from these facts

that Cassilly used the search warrants as a ruse to evade a pre-seizure

adversarial hearing, only to ask for just such a hearing in his civil

complaint filed a month later. Rather, the complaint can only be read

to indicate that Cassilly intended to obey the constitutional rule

requiring an adversarial hearing before the allegedly obscene material

could be seized and destroyed under the civil case. Finally, Cassilly

did not switch exclusively to a civil proceeding (where a pre-seizure

hearing was required) after some materials were seized under the

criminal warrants. He eventually followed up on the warrants with

criminal prosecutions.

Hicks has failed to produce any material evidence that the search

warrants were intended for any purpose other than to preserve evidence for a criminal trial. Hicks's attempt to establish a connection

_________________________________________________________________

3 The hearing was never held, and Cassilly later voluntarily dismissed

the complaint.

 9
between the search warrants and the civil complaint is simply "too

remote and too tenuous to create a genuine issue of material fact."

Ennis v. Nat'l Assoc. of Bus. and Educ. Radio, Inc. , 53 F.3d 55, 62

(4th Cir. 1995). Cassilly therefore did not violate clearly established

law in reviewing and approving the search warrant applications. The

district court's denial of qualified immunity for Cassilly must therefore be reversed.

C.

The evidence with regard to Deputy Sheriff Taylor even more

clearly indicates that he is entitled to qualified immunity. The only

evidence in the record concerning Taylor's motive in seeking the

search warrants is his supporting affidavits for the warrants. Those

affidavits clearly indicate that the searches were intended to gather

evidence relating to violations of § 416D, a criminal statute. Their

reliance on the state criminal obscenity statute makes the affidavits

virtually indistinguishable from the warrant upheld by the Supreme

Court in Heller, 413 U.S. at 485. There is no mention of the civil statute which permits material to be destroyed, nor is there any indication

that Taylor intended to seize the evidence for any reason except to

obtain evidence of a possible criminal violation. Furthermore, Hicks

does not present any evidence suggesting that Taylor was involved in

or even knew about Cassilly's decision to file a civil complaint a

month after the search warrants were executed. While Hicks is entitled to reasonable inferences, he is not entitled to mere suppositions

unsupported by the record. See Ennis, 53 F.3d at 62. Here, the uncontradicted evidence in the record demonstrates that Taylor obtained

and executed the search warrants solely for the purpose of obtaining

evidence in a criminal case. We therefore find that he did not violate

clearly established law in obtaining the warrants. Accordingly, the

district court erred in failing to grant summary judgment to Taylor on

qualified immunity grounds.

III.

We conclude that Cassilly and Taylor did not violate clearly established law by obtaining search warrants (without a pre-seizure adversarial hearing) in order to seize allegedly obscene materials from

Hicks as evidence for a criminal prosecution. We therefore reverse

 10
the judgment of the district court and remand with instructions that

summary judgment be granted to Cassilly and Taylor on the grounds

of qualified immunity.4

REVERSED AND REMANDED WITH INSTRUCTIONS

 11

_______________________________________________________

4 The district court also denied summary judgment to Mary Teresa 

Garland, an Assistant State’s Attorney in Cassilly’s office. Garland 

did not participate in obtaining the search warrants, and there is 

no evidence suggesting that she had any role in Cassilly’s decision 

to file a civil complaint after the warrants were executed. Accordingly, the district court is also instructed to enter summary judgment for Garland on qualified immunity grounds.