1The Hon. Robert T. Dawson, United States District Judge for the Western

District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

__________

No. 98-1753EM

_____________

B.A.P., Inc., *

*

Appellant, *

*

*

v. * On Appeal from the United

* States District Court

* for the Eastern District of

Robert P. McCulloch, Prosecuting * Missouri.

Attorney of St. Louis County, Mo.; *

Ronald A. Battelle, Col., Chief of *

Police, St. Louis County Police *

Department, *

*

Appellees. *

___________

Submitted: November 16, 1998

Filed: February 26, 1999

___________

Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and DAWSON,1 District

Judge. ___________

RICHARD S. ARNOLD, Circuit Judge.
2The Hon. Stephen N. Limbaugh, United States District Judge for the Eastern

District of Missouri.

3Mo. Rev. Stat. § 573.010(8) provides the following definition of obscenity:

[A]ny material or performance is obscene if:

(a) Applying contemporary community standards, its predominant

appeal is to prurient interest in sex; and

(b) Taken as a whole with the average person, applying contemporary

community standards, it depicts or describes sexual conduct in a

patently offensive way; and

(c) Taken as a whole, it lacks serious literary, artistic, political or

scientific value.

Mo. Rev. Stat. § 573.030 provides that “A person commits the crime of

promoting . . . obscenity in the second degree if, knowing its content or character, he:

 (1) Promotes or possesses with the purpose to promote any obscene material

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B.A.P., Inc., filed this complaint for declaratory judgment and injunction to

determine whether a Missouri statute which sets out the procedure for obtaining

search warrants for obscene material is unconstitutional on its face or as applied. The

District Court2 found that the failure of the Missouri statute to include the procedural

safeguards urged by B.A.P. did not render the statute unconstitutional, and that the

statute as applied to B.A.P. conformed to all relevant constitutional standards.

B.A.P., Inc. v. McCulloch, 994 F. Supp. 1131 (E.D. Mo. 1998). We affirm. 

I.

The St. Louis County Police Department began investigating B.A.P., Inc., for

suspected violations of the Missouri obscenity statutes3 in the late spring of 1997. 
for pecuniary gain . . ..” 

4Mo. Rev. Stat. § 542.281. Obscene matter, search warrant, procedure

for obtaining--application for warrant content--adversary hearing

required, when--alteration of material after notice of hearing or

execution of warrant prohibited

 1. Any police officer, sheriff or deputy sheriff may make application

for the issuance of a search warrant to search for and seize:

(1) Obscene matter being held or displayed for sale,

exhibition, distribution, or circulation to the public . . ..

 2. A warrant to search for and seize the matters and property described

in subsection 1 of this section as evidence in a criminal proceeding

pursuant to chapter 573, RSMo, may be issued by a judge of the circuit

court in the county or judicial district in which the alleged matter or

property is located. . . .

 3. The application and the warrant, if issued, shall designate precisely

by title, or otherwise, each item to be searched for and seized.

 4. No warrant shall be issued to search for and seize any item unless the

judge determines there is probable cause to believe that such item is

obscene as defined in section 573.010, RSMo, and is being displayed,

sold, exhibited, distributed, or circulated to the public . . ..

* * *

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Over several occasions, undercover officers purchased a total of eight videos and

three magazines from a business operated by B.A.P. known as California Erotic

Novelties located in an unincorporated area of St. Louis County. After watching the

videos and looking through the magazines, the officers consulted with the St. Louis

County Prosecuting Attorney’s Office and decided to apply for a search warrant under

Mo. Rev. Stat. § 542.281.4 The application for the search warrant, the accompanying
 8. If the purpose of applying for a warrant is to search for and seize

obscene material for other than evidentiary purposes, the judge shall

hold an adversary hearing to determine whether such matter is obscene

before issuing a warrant. . . .

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affidavit of the investigating officer, Detective Ostendorf, and the warrant itself, all

state that “[o]bscene material in violation of RSMo. 573.030 is being kept and/or

displayed upon the premises” of California Erotic Novelties. Each of these

documents contains identical lengthy definitions of “obscene” based on the definition

used in the Missouri statute. At the conclusion of these definitions the documents

state, “said video cassettes and magazines are proscribed by Section 573.030 RSMo

. . . as follows: [at this point the titles of the various materials are listed].” Each

document then continues, “and all other items contained in and on the premises . . .

that depicts [sic] sexual conduct as follows . . ..” The definition of obscene used

above is then substantially repeated. 

Ostendorf’s affidavit contains a brief description of several of the videos

detailing the nature of the sexual conduct depicted, and recounts statements made to

her during her undercover visit to California Erotic Novelties by its employees that

the videos were rated “XXX” and were “hard-core pornography.” Ostendorf also

attached photocopies of the video box covers and front covers of the magazines to her

affidavit. Ostendorf and a representative of the Prosecuting Attorney’s Office then

presented the application and affidavit to Circuit Judge O’Toole, who examined the

materials, briefly questioned Ostendorf, and then issued the warrant. Prior to the

execution of the warrant, members of the St. Louis County Police Department, after

consultation with the St. Louis County Prosecuting Attorney’s Office, met in order

to discuss the criteria for seizure under the warrant. During the course of this

meeting, a “three-pronged test” was referred to and was later used by the officers

conducting the search. Under this test, the material had to 1) be “XXX-rated;” 2)

have genitalia displayed on the covers or within the material seized; and 3) have
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sexual acts portrayed in a “non-literary or artistic manner.” 

Using this guideline, the officers conducted a search of California Erotic

Novelties on September 16, 1997, that lasted approximately ten hours and resulted

in the seizure of 4189 videos and 2118 magazines. On October 20, 1997, the State

of Missouri, St. Louis County, filed an eleven count information against B.A.P. and

three of its employees for promoting obscenity in the second degree. Counts One

through Eight and Count Eleven arose from various undercover sales in May, July,

and August of 1997; Counts Nine and Ten were based on a video and magazine

seized during the execution of the search warrant. 

On October 23, 1997, the District Court held a hearing on the preliminary

injunction. Peter Pigman, an employee of B.A.P. who was on duty at California

Erotic Novelties at the time of the search, testified that after the search was

completed, the store was virtually cleaned out of merchandise (Tr. 24). Pigman also

testified that approximately seventeen previously unopened boxes full of videos were

seized, as well as multiple copies of many videos and magazines. Detective

Ostendorf confirmed during her testimony that she seized several boxes of previously

unopened videos after opening the boxes and examining the titles (Tr. 93), and also

testified that, to her knowledge, the search warrant gave her the authority to seize

multiple copies of videos and magazines (Tr. 98). As to the manner in which the

material was seized, Ostendorf stated: 

With the magazines, I personally seized all of those, so how I did it is:

I didn’t open the magazines and read them. All I did is anything on the

front cover that either showed a sex act in a graphic nature, in an

offensive nature type, or it showed genitalia in a non-artistic form, was

seized. 

(Tr. 119.) Ostendorf further testified that the same basic procedure was followed for
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the seizure of the videos, that is, the decision on whether to seize was made after a

brief perusal of the pictures on the box. 

The attorney for B.A.P. then questioned Robert P. McCulloch, Prosecuting

Attorney of St. Louis County, about whether it would be necessary to introduce

anything other than the actual videos sold to the undercover officers in order to

prosecute the misdemeanor counts. McCulloch explained that the charge of

promotion of obscenity requires the State to prove that the defendant knew the

character and content of the material, and that the other tapes might be needed to

show that knowledge. In addition, McCulloch speculated that the other tapes could

potentially form the basis of additional charges. The following exchange then

ensued:

Q: You are not telling the Court that it was necessary for the police

to go in and seize every video in the store in order to prove these eight

misdemeanor counts. That isn’t your testimony today, is it?

A: There are ten counts there, 10 or 11.

Q: Let’s just deal with the first eight.

A: Well, with the first eight, they deal with dates preceding the

execution of the search warrant -- I am sorry, the first nine I believe do,

maybe the first eight -- deal with dates preceding the search warrant.

However, our evidence, and I’m not prepared to try the case right

now, but essentially our evidence would show that this conduct was

continuing at least from the first time the officers went in in May

throughout the entire summer.

I think that evidence is admissible for the purposes that I stated

earlier, to show that the individuals involved in the sale were aware of

the nature and character and content of the material that they were

issuing or that they were promoting, and other charges may result from
5Counts Nine and Ten resulted from items seized on the day of the search,

which was actually September 16, 1997.

6As noted, B.A.P.’s initial action, filed on September 25, 1997, prior to the

filing of the information, challenged the constitutionality of the statute as written and

as applied. In this appeal, B.A.P. limits its arguments to the facial validity of the

statute only. 

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the items that were seized.

In fact, other charges did result from the items that were seized on

the 15th of September, when the warrant was executed.[5] There may be

additional charges.

Q: Let me ask you this question: Are you holding for evidence to be

used in Counts 1 through 8, which deal with offenses that took place

[other] than on May the 15th of 1997 and August the 18th, are you

holding as evidence these four – over 4,000 videos that were seized on

September the 16th?

A: Not solely for that purpose, but yes.

Q: Not solely for that purpose?

A: Correct.

(Tr. 145-47.)

II.

B.A.P. claims that the statute which authorized the warrant, Mo. Rev. Stat.

§ 542.281, is facially unconstitutional on three grounds, and each will be addressed

in turn.6
7

In Marcus v. Search Warrant of Property at 104 East Tenth St., Kansas City,

367 U.S. 717 (1961), and A Quantity of Copies of Books v. Kansas, 378 U.S. 205

(1964), the Court held that a prior judicial determination of obscenity was required

before any large-scale seizure of materials for the purpose of their destruction as

contraband. Marcus, 367 U.S. at 731-32; A Quantity of Books, 378 U.S. at 210.

-8-

A.

B.A.P. first argues that the statute is unconstitutional because it fails to

distinguish adequately between “mass seizures” and “limited evidentiary seizures.”

As noted above, the Missouri statute sets out two different procedural paths for the

seizure of obscene materials, depending on the purpose of the seizure. Under Mo.

Rev. Stat. § 542.281.8, if the warrant is for “other than for evidentiary purposes” then

the statute requires written notice and an adversarial hearing to determine the issue

of obscenity before the judge may issue the warrant. The problem with this scheme,

B.A.P. insists, is that there is nothing in the language of the statute itself to prevent

an overzealous prosecutor from conducting a mass seizure without providing the

required procedural safeguards by simply disguising it as an evidentiary seizure. As

B.A.P. correctly points out, the Constitution requires additional procedural safeguards

when obscene material is seized as contraband in a forfeiture proceeding, as opposed

to when it is seized as evidence of a crime, in this case a misdemeanor violation,

promotion of obscenity in the second degree.7 According to B.A.P., the Prosecuting

Attorney’s Office and the St. Louis County Police Department essentially conducted

a raid on California Erotic Novelties and seized most of its inventory in an attempt

to force it out of business. B.A.P. argues that McCulloch’s testimony, the fact that

the seizure practically depleted the entire inventory of California Erotic Novelties,

and the cursory fashion in which the officers determined what items would be seized,

all indicate that the seizure was not just to gather evidence, but also to restrain the

free flow of presumptively protected material. Furthermore, B.A.P. claims that this

mischief was a result of an infirmity in the statute. As B.A.P. sees it, in order to pass

constitutional scrutiny the statute must provide some constraint on the authority of
8B.A.P. insisted in both its written and oral arguments before this Court that

McCulloch’s testimony clearly indicates that the State was not motivated solely to

gather evidence. In support of this view, B.A.P. cited the final portion of the above

quoted exchange during the hearing. However, when read in context, we do not think

the admission is so clear. McCulloch had already stated that the other videos might

result in additional charges, and that the State might need to introduce evidence of

defendant’s knowledge or intent.

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the issuing judge not to exceed the limited scope of permissible evidentiary seizures,

or must require a neutral, detached magistrate to make the determination as to what

type of seizure the State is seeking. 

We disagree. The District Court found that it was “undisputed that the

expressed purpose for the issuance of the subject warrant was to seize obscene

materials for evidentiary purposes,” and we may not set aside this finding unless it

is clearly erroneous.8 In any event, B.A.P. asks too much. Its argument, in essence,

is that we should invalidate the statute for failing to prohibit potential abuses by

prosecutors who use, or misuse, procedures provided for in the statute. This is not

the way to address such misconduct. No statute can absolutely eliminate all

possibility of abuse in its administration, and the statute before us does clearly

distinguish between seizures for evidentiary purposes and other seizures. It is true

that in the area of First Amendment rights, the Supreme Court has permitted

overboard regulations of speech to be invalidated on their face because of “a judicial

prediction or assumption that the statute’s very existence may cause others not before

the court to refrain from constitutionally protected speech or expression.” Members

of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S.

789, 799 (1984) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)).

However, there must be “a realistic danger that the statute itself will significantly

compromise recognized First Amendment protections . . ..” Id. at 801. No such

danger exists in this case. As B.A.P. itself points out, the danger is overzealous

prosecution, not a defect in the statute. If such misconduct does occur, the aggrieved
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party who diligently pursues its rights has a variety of protections. Among other

things, a bookseller may go to court and secure the return of all multiple copies (all

copies beyond a single copy of each item). That in fact happened here: the District

Court ordered all multiple copies returned, and defendants have complied. 

B.

B.A.P. next argues that the statute is invalid even if the seizure was purely for

evidentiary purposes, because it fails to provide a procedural avenue for requesting

a prompt, post-seizure adversarial hearing to determine whether the materials seized

are obscene. B.A.P. claims that without such a device it is suspended in

“jurisdictional purgatory” until the initiation of a criminal proceeding (which occurs

at the discretion of the prosecutors any time before the statute of limitations runs on

the offense), at which time it could seek return of its property by motion in the

criminal case. B.A.P. argues that in the meantime it has no procedural recourse. 

Again, we disagree. It is true that the Constitution requires that a prompt

hearing be available to B.A.P., but the burden is on B.A.P. to request such a hearing

– something it never did. Heller v. New York, 413 U.S. 483, 490-91 (1973); Supreme

Video, Inc. v. Schauz, 15 F.3d 1435, 1443 (7th Cir. 1994). B.A.P.’s argument that

it had no procedural avenue by which to request such a hearing is unconvincing, since

it never made the attempt. A constitutional right does not need enabling legislation

to provide for its enforcement, Merrell v. All Seasons Resorts, Inc., 720 F. Supp. 815,

818 (C.D. Cal. 1989), and we refuse to invalidate a statute for its lack of a particular

safeguard when the party making the request was never denied relief. B.A.P. could

have moved the judge who issued the warrant to provide an adversary hearing on the

issue of obscenity, and we are not willing to assume that the judge would not have

held such a hearing.
9

In a separate section of the District Court’s opinion the Court acknowledged

that both Pigman and Detective Ostendorf had testified that multiple copies were

seized. But neither was able to identify any specific video or magazine of which

multiple copies were taken. And, because there was no evidence that all copies of

any particular video or magazine were seized, the Court found that B.A.P. had failed

to carry its burden of showing that the failure of the warrant to have a “one copy”

limitation constituted an impermissible prior restraint. Id. at 1145; see also New York

v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986).

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C.

B.A.P.’s final claim is that the statute is unconstitutional because it permits the

seizure of multiple copies of allegedly obscene material. B.A.P. insists that this

deficiency allows materials to be taken completely out of circulation before a judicial

determination on the issue of obscenity. The State argues there is no requirement that

every warrant limit evidentiary seizures to only one copy of every item, and that, in

any event, such a limitation is not a necessary component of the search and seizure

statute. The District Court, after conducting a thorough review of the Supreme Court

cases in this area, concluded that the statute’s failure expressly to include such a

limitation did not render it unconstitutional. The Court did, however, recognize at the

close of its order that since “there is some evidence that multiple copies of videos and

magazines were seized . . . [i]f the plaintiff can identify the multiple copies taken,

and requests their return, the defendants shall return the multiple copies seized. If a

single copy was seized, and if the plaintiff can so identify it and requests its return,

the defendants shall make a copy of the video so that the video is available for

viewing pending an obscenity determination.”9 994 F. Supp. at 1146. As we have

noted above, this relief was later obtained by B.A.P.

In Heller v. New York, 413 U.S. 483 (1973), the manager of a movie theater

who had been found guilty of promoting obscenity appealed the denial of his motion

to dismiss the indictment on the ground that the seizure of the film, which formed the
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basis of the conviction, violated the Constitution because it was not preceded by an

adversary hearing on the issue of probable obscenity. The Court rejected this

argument, holding that “there is no such absolute right where allegedly obscene

material is seized, pursuant to a warrant, to preserve the material as evidence in a

criminal prosecution.” Id. at 488. Using language that B.A.P. now relies on heavily,

the Court then differentiated between the types of seizures at issue in Marcus and A

Quantity of Books, which did require a pre-seizure hearing, and the one which Heller

complained of, noting that a seizure for the purpose of destroying the materials or

blocking their distribution is a “very different matter from seizing a single copy of a

film for the bona fide purpose of preserving it as evidence in a criminal proceeding,

particularly where, as here, there is no showing or pretrial claim that the seizure of the

copy prevented continuing exhibition of the film.” Id. at 492 (emphasis supplied).

The Court’s reasoning, it seems to us, is based on several factors, none of which

necessarily compels a “one copy” limit on all future evidentiary seizures. First, there

had already been a determination of probable cause by a neutral magistrate; second,

the State of New York stood ready to provide a prompt post-seizure hearing; and

third, the Court mandated that if there were a showing that other copies of the film

were not available, “the court should permit the seized film to be copied so that

showing can be continued pending a judicial determination of the obscenity issue in

an adversary proceeding. Otherwise, the film must be returned.” Id. at 492-93

(footnote omitted). In its discussion, the Court also included a footnote which stated

in part: 

This is not to say that multiple copies of a single film may be seized as

purely cumulative evidence, or that a State may circumvent Marcus or

A Quantity of Books by incorporating, as an element of a criminal

offense, the number of copies of the obscene materials involved.

Id. at 492 n.8. 
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In Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989), the Court restated

the holding in Heller, using somewhat broader language: 

[In Heller,] we concluded that until there was a “judicial determination

of the obscenity issue in an adversary proceeding,” exhibition of a film

could not be restrained by seizing all the available copies of it. The

same is obviously true for books or any other expressive materials.

While a single copy of a book or film may be seized and retained for

evidentiary purposes based on a finding of probable cause, the

publication may not be taken out of circulation completely until there

has been a determination of obscenity after an adversary hearing. 

Id. at 63 (quoting Heller, 413 U.S. at 492-93). 

The Seventh Circuit relied on the above cited passages to hold: 

Supreme Court decisions clearly set forth when police may seize movies

without a prior determination of whether the films are obscene. First, a

police officer may seize single copies of films (meaning if a store had

three Rocky II movies on its shelf, the police may seize only one) for the

purpose of preserving them as evidence in a criminal proceeding so long

as the seizure is based on probable cause. 

Supreme Video, Inc. v. Schauz, 15 F.3d 1435, 1442 (7th Cir. 1994). We need not

decide in this case whether it is always unconstitutional to seize more than one copy

for evidentiary purposes. The focus of this case is on the facial validity of the

Missouri statute, not, as in Supreme Video, the actual conduct of the officers in

executing the warrant. If there is a one-copy limitation, it may be enforced by suit

against the officers. The limitation does not have to appear on the face of the statute.

Indeed, in this very case the District Court ordered the return of all multiple copies,

and there is no proof that sale of any particular item was ever completely restrained
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because all copies of the item had been seized.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.