Maryland v. MacOn
Opinion of the Court
delivered the opinion of the Court.
This case requires us to decide whether allegedly obscene magazines purchased by undercover officers shortly before
I
On May 6, 1981, three Prince George’s County police detectives went to the Silver News, Inc., an adult bookstore in Hyattsville, Maryland, as part of a police investigation of adult bookstores in the area. One of the detectives, who was not in uniform, entered the store, browsed for several minutes, and purchased two magazines from a clerk, Baxter Macon, with a marked $50 bill. The detective left the store and showed the two magazines to his fellow officers who were waiting nearby. Together they concluded that the magazines were obscene under the criteria previously used by them in warrant applications. The detectives returned to the store, arrested respondent Macon, who was the only attendant in the store, and retrieved from the cash register the $50 bill that had been used to make the purchase. The officers neglected to return the change received at the time of the purchase. Respondent escorted the remaining customers out and closed the bookstore before leaving with the detectives.
The Maryland Court of Special Appeals agreed that a warrant is required both to seize allegedly obscene materials and to arrest the distributor in order to provide a procedural safeguard for the First Amendment freedom of expression. 57 Md. App., at 710, 471 A. 2d, at 1092. In cases involving First Amendment rights, the court reasoned, Fourth Amendment safeguards, including suppression of material acquired in connection with a warrantless arrest, must be applied more stringently. Ibid. The court determined that the purchase of the magazines was a “constructive” seizure and that the proper remedy was to exclude the magazines from evidence at the subsequent trial. Id., at 716, 471 A. 2d, at 1096. Alternatively, the court held that the warrant-less arrest of respondent on obscenity charges required the exclusion of the publications from evidence. Id., at 719, 471 A. 2d, at 1097. The court accordingly reversed the conviction and ordered that the charges be dismissed because without the magazines the evidence was insufficient to sustain a conviction. Ibid.
For the reasons set forth below, we conclude that the officer’s entry into the bookstore and later examination of materials offered for sale there did not constitute a search and that the purchase of two magazines did not effect a seizure. We do not decide whether a warrant is required to arrest a suspect on obscenity-related charges, because the magazines at issue were not the product of the warrantless arrest. Because we hold that the magazines were properly admitted in evidence at trial, we also do not address respondent’s contention that the Double Jeopardy Clause bars retrial.
II
The central issue presented is whether the magazines purchased by the undercover detectives before respondent’s arrest must be suppressed. If the publications were ob
A
The First Amendment imposes special constraints on searches for and seizures of presumptively protected material, Lo-Ji Sales, Inc. v. New York, 442 U. S. 319, 326, n. 5 (1979), and requires that the Fourth Amendment be applied with “scrupulous exactitude” in such circumstances. Stanford v. Texas, 379 U. S. 476, 485 (1965). Consequently, the Court has imposed particularized rules applicable to searches for and seizures of allegedly obscene films, books, arid papers. See, e. g., Roaden v. Kentucky, 413 U. S. 496, 497 (1973) (“seizure of allegedly obscene material, contemporaneous with and as an incident to an arrest for the public exhibition of such material . . . may [not] be accomplished without a warrant”); Marcus v. Search Warrant, 367 U. S. 717 (1961) (warrant to seize allegedly obscene magazines must be particularized and may not issue merely on officer’s conclusory assertion). Although we have not previously had an occasion to analyze the question whether a purchase of obscene material is properly classified as a seizure, some prior cases have involved seizures that followed bona fide undercover purchases. See, e. g., Lo-Ji Sales, Inc. v. New York, supra; Marcus v. Search Warrant, supra. In those cases, the Court did not address the exclusion of the purchased materials, but only of the materials obtained through mass seizures conducted pursuant to unconstitutional open-ended warrants. Absent some action taken by government agents that can properly be classified as a “search” or a “seizure,” the Fourth Amendment rules designed to safeguard First Amendment freedoms do not
A search occurs when “an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U. S. 109, 113 (1984). Here, respondent did not have any reasonable expectation of privacy in areas of the store where the public was invited to enter and to transact business. Cf. United States v. Knotts, 460 U. S. 276, 281-282 (1983). The mere expectation that the possibly illegal nature of a product will not come to the attention of the authorities, whether because a customer will not complain or because undercover officers will not transact business with the store, is not one that society is prepared to recognize as reasonable. Cf. United States v. Jacobsen, supra, at 122-123, n. 22. The officer’s action in entering the bookstore and examining the wares that were intentionally exposed to all who frequent the place of business did not infringe a legitimate, expectation of privacy and hence did not constitute a search within the meaning of the Fourth Amendment. See Katz v. United States, 389 U. S. 347, 351 (1967) (“What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection”).
Nor was the subsequent purchase a seizure within the meaning of the Fourth Amendment. A seizure occurs when “there is some meaningful interference with an individual’s possessory interests” in the property seized. United States v. Jacobsen, supra, at 113. Here, respondent voluntarily transferred any possessory interest he may have had in the magazines to the purchaser upon the receipt of the funds. Cf. Lewis v. United States, 385 U. S. 206, 210 (1966). Thereafter, whatever possessory interest the seller had was in the funds, not the magazines. At the time of the sale the officer did not “interfere” with any interest of the seller; he took only that which was intended as a necessary part of the exchange. See id., at 211.
Notwithstanding that the magazines were obtained by a purchase, respondent argues that the bona fide nature of the purchase evaporated when the officers later seized the marked $50 bill and failed to return the change. Brief for Respondent 10. When the officer subjectively intends to retrieve the money while retaining the magazines, respondent maintains, the purchase is tantamount to a warrantless seizure. Id., at 11. This argument cannot withstand scrutiny. Whether a Fourth Amendment violation has occurred “turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,” Scott v. United States, 436 U. S. 128, 136 (1978), and not on the officer’s actual state of mind at the time the chai-
B
The question remains whether respondent’s warrantless arrest after the purchase of the magazines requires their exclusion at trial. Again, assuming, arguendo, that the war-rantless arrest was an unreasonable seizure in violation of the Fourth Amendment — a question we do not decide — it yielded nothing of evidentiary value that was not already in the lawful possession of the police. “The exclusionary rule enjoins the Government from benefiting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality. ” United States v. Crews, 445 U. S., at 475 (opinion of Brennan, J., joined by Stewart, and Stevens, JJ.). Here, the magazines were in police possession before the arrest, and the $50 bill, the only fruit of the arrest, was not introduced in evidence. We leave to another day the question whether the Fourth Amendment prohibits a warrantless arrest for the state law misdemeanor of distribution of obscene materials.
Because the undercover agents did not obtain possession of the allegedly obscene magazines by means of an unreasonable search or seizure and the magazines were not the fruit of an arrest, lawful or otherwise, the magazines were properly admitted in evidence at respondent’s trial for distribution of obscene materials. The judgment of the Maryland Court of Special Appeals is reversed.
It is so ordered.
Dissenting Opinion
dissenting.
The Court granted certoriari to consider the holding of the Court of Special Appeals of Maryland that the First and Fourth Amendments require evidentiary suppression of certain magazines obtained in the course of an investigation culminating in the warrantless arrest of respondent on obscenity charges. The statute under which the prosecution was brought
“The use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new.” Marcus v. Search Warrant, 367 U. S. 717, 724 (1961). “The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.” Id., at 729. See also Stanford v. Texas, 379 U. S. 476, 481-485 (1965). Thus in enforcing the Fourth Amendment’s command, courts must exercise a “scrupulous exactitude” to ensure that official use of the power to search and seize poses no threat to the liberty of expression. Id., at 485. In the words of The Chief Justice, “[t]he setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment,
An official seizure of presumptively protected books, magazines, or films‘is not “reasonable” within the meaning of the Fourth Amendment unless a neutral and detached magistrate has issued a warrant particularly describing the things to be seized, Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 (1979); Stanford v. Texas, supra, and the probable-cause determination supporting the warrant is based on a proceeding in which the magistrate has the opportunity to “focus searchingly on the question of obscenity,” Marcus v. Search Warrant, supra, at 732; see also Roaden v. Kentucky, supra; Heller v. New York, 413 U. S. 483 (1973); Lee Art Theatre v. Virginia, 392 U. S. 636 (1968). These strict requirements reflect a judgment that the inherently difficult decision respecting whether particular material is obscene can under no circumstances properly be left to investigating authorities “engaged in the often competitive enterprise of ferreting out crime,” Johnson v. United States, 333 U. S. 10, 14 (1948). The difficulty of applying the arcane standards governing obscenity determinations exacerbates the risk of overzealous use of the power to search and seize. Marcus v. Search Warrant, supra, at 732. And the consequence of such a seizure is a restraint on the distribution of presumptively protected materials. “[WJithout the authority of a constitutionally sufficient warrant, [seizure] is plainly a form of prior restraint and is, in those circumstances, unreasonable under Fourth Amendment standards.” Roaden v. Kentucky, supra, at 504.
Because official seizure of allegedly obscene books, magazines, and films requires a prior judicial determination of probable obscenity, it follows that seizure of a person for allegedly distributing such materials must meet the same requirements. A warrantless arrest involves the same diffi
The disruptive potential of an effectively unbounded power to arrest should be apparent. In this case, for example, the arrest caused respondent to usher out patrons and padlock the entrance to the bookstore. As in Roaden the official conduct “brought to an abrupt halt an orderly and presumptively legitimate distribution or exhibition.” 413 U. S., at 504. Several cases from the lower courts make plain that the systematic use of an unbridled power to arrest alone provides a potent means for harassing those who sell books and magazines that do not conform to the majority’s dictates of taste. See, e. g., Penthouse International, Ltd. v. McAuliffe, 610 F. 2d 1353 (CA5 1980); State v. Furayama, 64 Haw. 109, 637 P. 2d 1095 (1981). Indeed, requiring a warrant for seizures of presumptively protected materials would be pointless if the authorities could achieve an equally effective restraint on distribution by the simple expedient of a warrantless seizure of the seller of such materials.
In Roaden v. Kentucky, supra, this Court required suppression at trial of a film seized incident to a warrantless arrest of a theater owner on obscenity charges. Although the Court today suggests that the infirmity at issue in Roaden was the officer’s failure to obtain a warrant prior to seizing the film, ante, at 468, Roaden never specified whether the seizure of the person or the seizure of the film
The Court compounds the mischief by leaving respondent without an effective remedy for his illegal arrest. The Maryland Court of Special Appeals suppressed the two purchased magazines in part to ensure an effective remedy for the arrest. Holding that the magazines were legally purchased prior to the arrest and therefore can in no sense be considered tainted “fruits” of that arrest, this Court will neither suppress the magazines nor invalidate respondent’s conviction. The Court is of course following precedents, applicable to the run of cases, holding that the illegality of an arrest in itself will not suffice to prevent the introduction of evidence lawfully obtained prior to the arrest, United States v. Crews, 445 U. S. 463, 472-473 (1980), or to invalidate a conviction, id., at 474; see also Frisbie v. Collins, 342 U. S. 519 (1952).
When First Amendment values are at stake mechanical application of these precedents is inappropriate. No logical imperative requires the rule of Frisbie v. Collins. Even under the methodology to which this Court has recently wedded itself in United States v. Leon, 468 U. S. 897, 906-908 (1984) — a methodology about which I have grave doubts, see id., at 930 (Brennan, J., dissenting); New Jersey
I-H HH
The Court’s endorsement of the government’s abuse of the arrest power as a means to enforce norms of taste in written and visual forms of expression is disquieting in its own right because the consequence inevitably will be suppression of
I dissent.
Md. Ann. Code, Art. 27, §418 (1982).
Boyd v. United States, 116 U. S. 616, 635 (1886).
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