311 F.

2d 94
5 A.L.R.3d 1196

UNITED STATES of America, Appellee,

v.
Arthur Abraham PEISNER and Morris Disman, Appellants.
No. 8543.

United States Court of Appeals Fourth Circuit.

Argued June 5, 1962.
Decided Nov. 5, 1962.

Joseph J. Lyman, Washington, D.C., for appellants.

J. Edward Davis, Asst. U.S. Atty. (Joseph D. Tydings, U.S. Atty., and
Stephen H. Sachs, Asst. U.S. Atty., on brief), for appellee.
Before BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges.
BOREMAN, Circuit Judge.

Arthur Abraham Peisner and Morris Disman were jointly indicted for
transporting in interstate commerce, for the purpose of sale and distribution,
1560 paper-bound books containing obscene, lewd and lascivious material, in
violation of 18 U.S.C. 1465 (1958). The case was removed from the District
Court in the State of New Jersey, where defendants were arrested and indicted,
to the District of Maryland under Rule 21(b), Federal Rules of Criminal
Procedure. Defendants were tried and convicted by the District Court sitting
without a jury. We think the judgments of conviction cannot be upheld.

Challenged on appeal is the constitutional validity of a search of Peisner's

automobile in the course of which search evidence on which the convictions
are based was discovered and seized. Also challenged is the legality of the
defendants' arrests following the search.1 The search and arrests were without
warrants. The District Court's opinion denying defendants' pretrial motion to
suppress the seized evidence is reported at 198 F.Supp. 67. Since defense
counsel stated at the bar of this court that the District Judge's finding that the

transported materials are obscene is not challenged, we proceed on the

assumption that the materials found in Peisner's automobile are obscene, lewd
and lascivious within the meaning of the statute.
3

For many months prior to the actual arrest of these defendants, Peisner had
been under investigation by the Federal Bureau of Investigation as a suspected
purveyor of obscene literature. During the later part of 1957 the Bureau
received a complaint that Peisner possessed and handled an obscene motion
picture film. In early 1958 Peisner was interviewed by the FBI with respect to
this complaint and, a short time thereafter, the Bureau determined as a result of
its investigation that Peisner was connected with certain individuals (David
Lerner, his brother Bernard,2 and Anthony Carbo) in the manufacture and sale
of obscene materials.

On May 31, 1958, Deputy Chief Blick of the Metropolitan Police Department,
Washington, D.C., investigated a complaint that obscene literature had been
found in the hallways of a certain building in Washington. He visited the
building and learned in the course of his investigation that during that day a
printing press had been in operation on the premises. It developed that the
offices examined by Blick were leased to Peisner though they were apparently
unoccupied at the time of the search. Blick found in Peisner's vacated quarters
some scrap pages on which were printed obscene passages, and a set of printing
plates for a book entitled 'Cosimo's Wife.' Copies of this book, referred to by
the District Court as 'Kosimo's Wife,' where later found with other paperbound
books in Peisner's car on November 1, 1958, all of which were thereafter
determined at trial by the District Court to be obscene. Blick's investigation
further revealed that before his arrival at Peisner's offices, a printing press had
been removed by two men who were identified from photographs by the
building's elevator operator as Peisner and David Lerner. All of this
information, the plates and scrap pages were turned over to the FBI.

In late October 1958, the FBI received information from an informant, who
was considered by the agents to be reliable because of previous 'tips' which had
proved to be accurate, that Peisner was planning to transport some obscene
materials from his home in Silver Spring, Maryland, to New York City for sale
in the latter place and that the trip was to be made on the week end of October
31, 1958, or the one following. The Government refused defendants' repeated
requests that the identity of the informant be disclosed and the District Court
held that the Government need not make such disclosure.

Prior to October 31, FBI agents had been making 'spot checks' of Peisner's
house but these were discontinued on Saturdy, November 1, and the house was

placed under constant surveillance. On that day the watching agent saw the
defendants, Peisner and Disman, load certain packages or cartons wrapped in
brown paper into Peisner's 1954 green buick, which was the parked in front of
Peisner's residence. After nine such packages had been placed in the car, David
Lerner arrived by automobile at the Peisner house and assisted defendants in
loading the remainder of the packages into the Buick. Shortly after two o'clock
in the afternoon, Peisner and Disman left the former's residence traveling
toward Baltimore in the Buick. Their first stop, entirely innocent in character,
was at Catonsville, Maryland. After leaving that area, they drove into
Baltimore City and were seen to enter and later leave a bookstore there.3 In
1957 or 1958 the proprietor of this store had been arrested for, and one of the
clerks had been convicted of, purveying obscene literature and pictures, which
facts were known to the FBI. At about seven o'clock in the evening the
defendants, who had been driving north on Route 40, stopped at Aberdeen,
Maryland, for dinner and at that time an FBI agent abserved that the packages
were still in the Buick. Upon resuming travel, rather than continuing on Route
40, the main highway, the Peisner vehicle followed a course of unmarked side
roads. The manner of driving supports the strong inference that they were
attempting to elude anyone who might be following. For about half an hour the
Buick, after sudden increases in speed, would suddenly slow down and
numerous 'U' turns were made. This unusual and erratic vehicular movement
forced the FBI automobile which was following to drop farther and farther
behind until surveillance of the Buick was no longer possible. The FBI later
picked up the trail when the Peisner vehicle re-entered Route 40 a considerable
distance north of the place where it left the highway. Defendants then
proceeded on Route 40 through Delaware, across the Delaware Memorial
Bridge and onto the New Jersey Turnpike where they were soon stopped by a
member of the New Jersey Turnpike Police. The officer approached the car and
asked Peisner, who was driving, for his driver's license; simultaneously, the
officer flashed the beam of his flashlight into the car and noticed several
wrapped packages on the rear seat and floor and a few loose books on top of
the packages. The officer testified that the packages and loose books were seen
from outside the car. Upon request, defendants got out and moved to the rear of
the automobile, whereupon the officer reached into the car and removed a
book. He then and there read briefly from the book and informed defendants
that they were under arrest for possession of obscene literature. Defendants
were taken to a nearby police barracks where they were later taken into custody
by the FBI.
7

It was established that the FBI office in Newark, New Jersey, had been advised
by the FBI office in Baltimore of Peisner's identity and that of his car, as well
as the reason of the Bureau for its interest in him. The Newark office was

advised also of the spot checks of the Peisner residence and the Baltimore
agents' belief that Peisner was contemplating the interstate transportation of
obscene literature during the week end of October 31, 1958. On November 1
the Baltimore office notified the Newark office that Peisner was proceeding in
a 1954 green Buick toward New Jersey and that it had reason to believe that he
was transporting obscene material. The Newark office relayed this information
to the New Jersey State Police. There is testimony by an agent in the Baltimore
office that he instructed the Newark office to request the New Jersey police to
arrest Peisner and his companion on the Turnpike, but apparently this
instruction and request did not reach the trooper who actually made the arrest.
This officer testified that he had been told to be on the lookout for a car such as
Peisner's containing obscene materials, but in his recital of the instructions
given him he made no reference to a request to make an arrest. It was shown
that the Turnpike authorities view with disfavor the stopping of automobiles on
the Turnpike by anyone other than uniformed members of the Turnipike police
force who travel in marked cars. This explains the FBI request that the New
Jersey police make the arrests. Though the trooper who actually made the
arrests testified that the Peisner vehicle was being operated in an unlawful
manner at the time it was stopped, no traffic violation was cited as the reason
for the arrests, and it appears that the search, seizure, and arrests were made, at
least in substantial part, because of the information furnished by the FBI. In
fact, the arresting officer admitted that, acting on the information which he had,
he stopped several other vehicles prior to stopping the Peisner car.
8

All law enforcement officials should keep constantly in mind the familiar
words of the Fourth Amendment, not only that innocent persons may be
protected, but also to make certain that persons who are clearly guilty of crime
may be convicted and the convictions upheld. Those words which overzealous
officers, no doubt acting in good faith, too often ignore or forget, are as follows:

'The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.'

10

The effect, nature and extent of that Amendment, as well as the duties of courts
to secure to the citizenry the protection it affords and guarantees, are set forth in
Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).
Defendant Weeks was convicted of using the mails for the purpose of
transporting certain coupons or tickets representing chances or shares in a
lottery or gift enterprise. He had been arrested without a warrant at his place of

business, and his residence was twice searched by police officers without a
search warrant. During the searches, certain papers, letters and other articles
were seized and some of them were later introduced in evidence against him.
The Court held that the search and seizure violated the Fourth Amendment and
that the evidence thus acquired should have been suppressed. In the course of
its opinion, the Court stated, 232 U.S. at 391-392, 34 S.Ct. at 343-344, 58 L.Ed.
652:
11

'The effect of the Fourth Amendment is to put the courts of the United States
and Federal officials, in the exercise of their power and authority, under
limitations and restraints as to the exercise of such power and authority, and to
forever secure the people, their persons, houses, papers and effects against all
unreasonable searches and seizures under the guise of law. This protection
reaches all alike, whether accused of crime or not, and the duty of giving to it
force and effect is obligatory upon all entrusted under our Federal system with
the enforcement of the laws. The tendency of those who execute the criminal
laws of the country to obtain conviction by means of unlawful seizures and
enforced confessions, the latter often obtained after subjecting accused persons
to unwarranted practices destructive of rights secured by the Federal
Constitution, should find no sanction in the judgments of the courts which are
charged at all times with the support of the Constitution and to which people of
all conditions have a right to appeal for the maintenance of such fundamental
rights.

12

'* * * The efforts of the courts and their officials to bring the guilty to
punishment, praiseworthy as they are, are not to be aided by the sacrifice of
those great principles established by years of endeavor and suffering which
have resulted in their embodiment in the fundamental law of the land. * * * ' Id.
at 393, 34 S.Ct. at 344, 58 L.Ed. 652.

13

Prior to Weeks, however, the Supreme Court, in Boyd v. United States, 116
U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), recognized a distinction between
the search for and seizure of (1) stolen goods or goods liable to the payment of
duties and concealed to avoid such payment and (2) a man's private books and
papers for the purpose of obtaining information therein contained or of using
them as evidence against him. 'In the one case, the government is entitled to the
possession of the property; in the other it is not.' Id. at 623, 6 S.Ct. at 528, 29
L.Ed. 746. In Boyd, a civil case involving the forfeiture of imported goods on
which the customs duties had allegedly not been paid, the issue was whether
the Government could compel the defendant to produce certain documents
which, when introduced in evidence, would tend to incriminate him. The statute
authorizing a court order requiring production of the documents was

confessional in character in that if defendant refused to produce the documents

listed in the order, the prosecution was authorized to treat as confessed or
admitted such facts as were expected to be proved from the documents
themselves. The Supreme Court found the statute and its authorized procedures
repugnant to the Fourth and Fifth Amendments.
14

Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921),
reiterated the lessons taught by Boyd and Weeks and held that search warrants
may not be used to gain access to a man's house or office and papers solely for
the purpose of making a search to secure evidence to be used against him in a
criminal proceeding, and may be resorted to only when a primary right to such
search and seizure may be found in the interest which the public may have in
the property to be seized, or in the right to possession of it, or when a valid
exercise of the police power renders possession unlawful and provides that it
may be taken. 'There is no special sanctity in papers, as distinguished from
other forms of property, to render them immune from search and seizure, if only
they fall within the scope of the principles of the cases in which other property
may be seized, and if they be adequately described in the affidavit and warrant.'
Id. at 309, 41 S.Ct. at 265, 65 L.Ed. 647.

15

In Go-Bart Importing Co. v. United States, 282 U.S. 344, at page 357, 51 S.Ct.
153 at page 154, 75 L.Ed. 374 (1931), the Court stated, referring to the Fourth
Amendment:

16

'The second clause declares: 'and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.' This prevents the issue of
warrants on loose, vague or doubtful bases of fact. It emphasizes the purpose to
protect against all general searches. Since before the creation of our
government, such searches have been deemed obnoxious to fundamental
principles of liberty. They are denounced in the constitutions or statutes of
every State in the Union. * * * The need of protection against them is attested
alike by history and present conditions. The Amendment is to be liberally
construed and all owe the duty of vigilance for its effective enforcement lest
there shall be impairment of the rights for the protection of which it was
adopted. * * * '

17

It is well settled, however, that the Amendment does not prohibit all searches
and seizures but only those that are unreasonable. Carroll v. United States, 267
U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In 267 U.S. at page 149, 45 S.Ct.
at page 284, 69 L.Ed. 543, the Court stated the rule governing the seizure
without a warrant to contraband goods in the course of transportation and

subject to forfeiture or destruction as follows:

18

'On reason and authority the true rule is that if the search and seizure without a
warrant are made upon probable cause, that is, upon a belief, reasonably arising
out of circumstances known to the seizing officer, that an automobile or other
vehicle contains that which by law is subject to seizure and destruction, the
search and seizure and valid. The Fourth Amendment is to be construed in the
light of what was deemed an unreasonable search and seizure when it was
adopted, and in a manner which will conserve public interests as well as the
interests and rights of individual citizens.'

19

However, it must be remembered that the standard of probable cause to support

a search without a warrant is no less stringent than the standard of probable
cause required to support the issuance of a search warrant. As stated in Henry v.
United States, 361 U.S. 98, 104, 80 S.Ct. 168, 172, 4 L.Ed.2d 134 (1959), 'The
fact that the suspects were in an automobile is not enough. Carroll v. United
States, supra, liberalized the rule governing searches when a moving vehicle is
involved. But that decision merely relaxed the requirements for a warrant on
grounds of practicality. It did not dispense with the need for probable cause.'
See also Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879
(1949); Ray v. United States, 255 F.2d 473 (4th Cir. 1958).

20

Defendants contend that where books or publications are the object of a police
search, a more stringent standard of probable cause for the search is required
than where other items of property are the object of such search. This is so,
they say, because the prohibitions of the Fourth and First Amendments to the
Constitution must be considered together in the protection of persons from
searches for or seizures of publications which would constitute unwarranted
invasions of privacy (Fourth Amendment) and inhibit the free flow of protected
expression (First Amendment).4 Defendants further contend that, in order to
validate the search, seizures and arrests here involved, there must have been a
prior judicial determination of the obscenity of the transported publication.

21

We are here first concerned with the constitutional safeguards designed to

protect individuals from prohibited unreasonable searches and seizures of their
'persons, houses, papers and effects.' The term 'effects' is broad enough in scope
to include automobiles or books which might be transported therein. The Fourth
Amendment is sufficiently broad to afford protection to all property, even
though it may be contraband of any type or obscene in nature, against
unreasonable searches and seizures.

22

It may well be said that, absent consent of one in position to give consent,

22

It may well be said that, absent consent of one in position to give consent,
every warrantless search and seizure by a police officer is prima facie
unreasonable unless and until there is a clear showing that, prior to the search,
the officer had good reason to believe that property properly classified as
contraband was contained in the place to be searched. Because of the protection
afforded by the First Amendment, most books or other publications (excepting,
for example, books stolen or illegally imported) cannot be properly classified as
contraband. Of course, obscene material is contraband under the statute
prohibiting interstate transportation thereof (18 U.S.C.A. 1465). The Supreme
Court has expressly excluded obscene publications from the protection of the
First Amendment.5 Standing alone, probable cause to believe that books or
other publications are being transported in interstate commerce is not sufficient
to support a search and seizure; there must be, in addition, probable cause to
believe that the books or other publications being to transported are obscene,
lewd and lascivious.

23

The fact that contraband is discovered during a warrantless search is not

enough to support such search without probable cause.6 A search is not to be
made legal 'by what it turns up. In law it is good or bad when it starts and does
not change character from its success.'7 'Nor is it material that the search was
successful in revealing evidence of a violation of a federal statute. A search
prosecuted in violation of the Constitution is not made lawful by what it brings
to light; * * *.'8

24

In brief and argument the defendants rely most heavily upon Marcus v. Search
Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). Extended
discussion thereof is deemed appropriate.

25

The pertinent facts in Marcus are that a police lieutenant, following certain
statutory procedures of Missouri as supplemented by a rule of the Supreme
Court of that state, after investigating the distribution of alleged obscene
materials in Kansas City, took a list containing the titles of five publications to
a magazine distributor and was informed that the distributor sold all but one of
the listed magazines. The following day the lieutenant visited five newsstands
and purchased one magazine from each.9 Soon thereafter, he signed and filed
six complaints in the state court stating in each that 'of his own knowledge' the
party named therein, at a stated place of business, 'kept for the purpose of (sale)
* * * obscene * * * publications.' No copy of any magazine on the lieutenant's
list or of any of the publications purchased by him was attached to the
complaints or shown to the state judge who later, acting solely on the basis of
the complaints, issued six search warrants authorizing (as to each of the five
newsstands and the distributor) 'any peace officer in the State of Missouri * * *
(to) search the said premises * * * within ten days after the issuance of this

warrant by day or night, and * * * seize * * * (obscene materials) and take

same into your possession * * *.' All the warrants were executed on the day
following their issuance but by different police officers of whom the lieutenant
who made the complaints was one. The officers, in executing the warrants,
examined publications in the respective places of business without confining
themselves to the magazines on the lieutenant's original list. Each of the
officers seized all the copies of the magazines which, in his judgment, were
obscene. Approximately 11,000 copies of 280 publications were seized and
hauled away from the six places within a period of about three hours.
Subsequently the state judge, after a hearing, determined that 100 of the seized
titled publications were obscene and that the remaining ones were not obscene.
An order was entered directing the return of the nonobscene publications to
their respective owners and the retention of the obscene for criminal
prosecution purposes.
26

The Supreme Court held, in Marcus, that these search and seizure procedures
lacked the safeguards to nonobscene material which the Due process Clause of
the Fourteenth Amendment requires to prevent erosion of the constitutional
guarantees of freedom of speech and press; that 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; that the procedures, as there applied, 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.10

27

Marcus is clearly distinguishable on its facts from the case at bar. It is

distinguishable also in that the Court was there called upon to consider and
apply the Due Process Clause of the Fourteenth Amendment, whereas we must
determine the application of the Fourth Amendment to the factual situation here
presented. Common to both cases, however, is the consideration of the First
Amendment guarantee of a free press and the relationship of that guarantee to
other provisions of the Constitution. We consider relevant here the Court's
observations and conclusions in Marcus with respect to the protection afforded
printed matter by the First Amendment and the holding that the First and
Fourteenth Amendments must be considered together.

28

Also, particularly applicable here are the words of Mr. Justice Clark in Mapp v.
Ohio, 367 U.S. 643, 657, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081 (1961):

29

'* * * The philosophy of each Amendment and of each freedom is

complementary to, although not dependent upon, that of the other in its sphere

of influence-- the very least that together they assure in either sphere is that no
man is to be convicted on unconstitutional evidence. Cf. Rochin v. California,
342 U.S. 165, 173 (72 S.Ct. 205, 96 L.Ed. 183) (1952).'
30

In Manual Enterprises, Inc. v. Day, 370 U.S. 478, 518, 82 S.Ct. 1432, 1453, 8
L.Ed.2d 639 (1962), the Supreme Court warns 'that the necessity for
safeguarding First Amendment protections for nonobscene materials means
that Government 'is not free to adopt whatever procedures it pleases for dealing
with obscenity * * * without regard to the possible consequences for
constitutionally protected speech.' Marcus v. Search Warrant, 367 U.S. 717, 731
(81 S.Ct. 1708, 6 L.Ed.2d 1127).'11

31

Though it has been determined that 'obscenity' is not within the area of
constitutionally protected speech and press, the complexity of the test of
'obscenity' fashioned by the Supreme Court in Roth v. United States, 354 U.S.
476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, serves to emphasize the vital necessity, in
the application of the test, that safeguards be provided to prevent denial of the
protection of free expression which does not treat sex in a manner 'appealing to
the prurient interest.' Sex and the portrayal of sex are not synonymous with
obscenity but only material dealing with sex in a manner appealing to prurient
interests is obscene. Roth, supra. The line between expression unconditionally
guaranteed and protected and that which may be legitimately suppressed,
regulated or punished is finely drawn. The separation of legitimate from
illegitimate expression calls for 'sensitive tools.'12

32

As courts have repeatedly stated, evidence establishing 'probable cause' need

not be sufficient to establish guilt.13 On the other hand, common rumor or
report, suspicion, or even strong reason to suspect, are not sufficient to
constitute probable cause for the issuance of an arrest warrant;14 nor will they
constitute probable cause for a search without a warrant.

33

The District Court concluded and the Government contends that here a 'reliable
informant' directly connected Peisner with obscene literature and a
contemplated interstate transportation thereof; that federal agents had almost
two years' knowledge of Peisner's connection with obscene materials; that
federal agents observed Peisner and Disman loading packages, which could
reasonably have contained books or papers, in Peisner's car; that surveillance
showed the defendants in association with known purveyors or obscene
material; that defendants were followed and observed as they transported the
packages through three states; that defendants employed evasive driving tactics
to avoid the federal agents; that this background information and these facts
constituted probable cause for the search, the arrest of the defendants and the

seizure of the publications. We are forced to disagree.

34

In reviewing the evidence, we find that the agent who was watching the
Peisner residence before the defendants drove away admitted that he had no
knowledge of the nature of the materials loaded in the Peisner car although he
understood that an FBI colleague had received an informer's tip. Indeed, he
testified the packages were 'similar to reams of stationery.' Another agent, in
charge of the investigation's field operations, also acknowledged that he had no
information that there was obscene literature in Peisner's car and that there was
nothing observable to indicate that the packages contained books, much less
obscene books. In fact, this latter agent indicated on cross-examination that the
FBI acted as it did on November 1 of the basis of opinion and suspicion that
Peisner was transporting obscene books. No one in the FBI had read any of the
books which were found and seized nor had there been any determination by
anyone, so far as disclosed by the record, that the materials being transported
were obscene. Supposedly, the informant told the FBI that Peisner was
planning to transport 'obscene' materials, but the informant was not produced as
a witness to tell what information he had or how the information was acquired;
nor did the FBI agents reveal, if they knew, how their informant acquired his
information. The FBI referred to the informant as reliable because of prior
accurate tips but without further explanation; however, it was brought out that
on at least one prior occasion a tip from the same source proved to be
inaccurate. It is possible that, had the Government seen fit to disclose the
informer's identity or produce him as a witness, there might have been a
showing that the FBI did have information sufficiently specific and reliable to
justify its action in the instant case. Unfortunately, in this particular, the District
Court could only speculate. Furthermore, the arresting New Jersey State Police
officer certainly had far less information concerning this whole situation than
did the FBI.15

35

Though safeguards are necessary to protect the products of a free press in

accord with the dictates of the First Amendment, we are not prepared to say
that there must have been a prior determination of obscenity by a judicial
officer to constitute probable cause for a search for and seizure of particular
publications thought to be obscene. However, as a minimal requirement, we
deem it essential that some qualified individual, aware of the proper test of
obscenity as formulated and announced in Roth v. United States,supra, should
have made a determination prior to search and seizure that a particular
publication meets that test. In order to make such a determination, one must
have read the whole or, at least, a very substantial portion of the suspected
publication, not merely a few setences, paragraphs or pages selected at random.
If law enforcement officers have reasonable cause to believe that certain

specific publications are obscene and are located in the place to be searched, a
factual base offered to justify a search without a warrant must be sufficiently
strong to support the issuance of a search warrant.
36

Bearing in mind the constitutionally protected freedom of expression as

guaranteed by the First Amendment, and the constitutionally protected right of
the people to be secure in their 'papers and effects' against unreasonable
searches and seizures as guaranteed by the Fourth Amendment, we reach the
conclusion that here the requisite standard of probable cause for the search,
seizure and arrests was not met. To repeat for emphasis, Government is not free
to adopt whatever procedures it pleases for dealing with obscenity without
regard to the possible consequences for constitutionally protected expression.
Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639,
supra.

37

Defendant Disman has never claimed an interest in the seized contraband but
he was lawfully in the car when the seizure was made. The Government
acknowledges that he is a proper party to move for the suppression of the
evidence under Rule 41(e) of the Federal Rules of Criminal Procedure. We
agree. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697
(1960).

38

The defendants challenge the validity of the arrest warrants issued subsequent
to the search and seizure. While the defendants and the seized publications
were in the custody of the New Jersey police, an FBI agent from the Bureau's
Newark, New Jersey, office was notified by telephone by the State Police that
defendants were in custody. Upon arrival at the State Police Barracks, the FBI
agent took defendants and the obscene publications into federal custody upon
the authorization of an Assistant United States Attorney in New Jersey. Relying
upon this authorization and 'the information and belief of the agents in the
Baltimore office,' the FBI agent, on Sunday morning, November 2, 1958,
obtained from a United States Commissioner warrants for the arrest of both
defendants. FBI Agent Aldrich, upon whose complaint the warrants were
issued, admitted that he had no personal knowledge of defendants' involvement
in the criminal activities for which they were later convicted. The complaint
simply alleged that each defendant 'did transport 1500 copies of obscene matter
in interstate commerce on information and belief supplied by the Baltimore
office of the FBI.' Under the holding of Giordenello v. United States, 357 U.S.
480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), the warrants are patently defective
and invalid. It is the Commissioner's task to determine whether probable cause
exists for the issuance of an arrest warrant; he is not permitted to rely upon the
conclusory statement of the complainant that probable cause exists, and

obviously he cannot rely upon the statement that the complainant believes that
other undisclosed individuals possess information constituting probable cause
for the arrest.
39

The Government argues that if the convictions of these defendants are not
upheld, enforcement of the statute (18 U.S.C. 1465) prohibiting the interstate
transportation of obscene materials will be virtually impossible. Perhaps
enforcement will be more difficult under today's ruling but, as Judge Learned
Hand said, 'We take the law as we find it; under it the convictions cannot
stand.'16 This problem is not new, as recognized by the Supreme Court in
United States v. Di RE, 332 U.S. 581, 595, 68 S.Ct. 222, 228, 92 L.Ed.2d 210
(1948):

40

'We meet in this case, as in many, the appeal to necessity. It is said that if such
arrests and searches cannot be made, law enforcement will be more difficult
and uncertain. But the forefathers, after consulting the lessons of history,
designed our Constitution to place obstacles in the way of a too permeating
police surveillance, which they seemed to think was a greater danger to a free
people than the escape of some criminals from punishment. Taking the law as it
has been given to us, this arrest and search were beyond the lawful authority of
those who executed them. The conviction based on evidence so obtained
cannot stand.'

41

We reach our ultimate conclusion in this case with great reluctance. The guilt of
the defendants is plain. The District Judge discharged his obligation to
determine the obscenity of the transported materials by performing the
distasteful task of reading the several different books found in the Peisner
automobile. He painstakingly pointed out in an oral opinion how the material
on page after page was obscene, lascivious, lewd and revoltingly filthy. No one
would dare contend that the books have any redeeming literary merit but,
rather, in the words of the District Judge, they are 'dirt for the dollar's sake.'
Under these circumstances, we think it not inappropriate to again remind all
law enforcement officials of their sworn duty to act in strict compliance with
the Constitution in their efforts to ferret out crimes and apprehend criminals and
to make certain that those as obviously guilty as the two defendants here shall
not escape punishment. Admittedly, this is not always a task easy of
performance but the Government is not without adequate-- indeed, powerful-means to apprehend and secure the conviction of persons who violate the laws.
With the exercise of due care on the part of those engaged in law enforcement,
guilty persons will be convicted and the convictions cannot be assailed for
failure to meet constitutional requirements designed primarily to protect the
innocent.

42

The defendants' motion to suppress the seized evidence should have been
granted. The judgments of conviction based on that evidence must be set aside.

43

Reversed.

Defendants argue in their brief in this court that the search followed the arrests
but in the District Court they took the position that they were taken into
custody after the search. The record supports the position taken in the District
Court

The District Judge noted that the Lerners had been convicted in the District of
Columbia of possession and sale of obscene literature although their
convictions were reversed because illegally obtained evidence was used against
them

It was testified at the trial that Peisner offered to sell 'books' to this store but the
offer was refused

The provisions of the Fourth Amendment have been fully set out, supra, in this
opinion. The pertinent portion of the First Amendment is as follows: 'Congress
shall make no law * * * abridging the freedom of speech, or of the press; * * *.'

Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)

Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)

United States v. Di RE, 332 U.S. 581, 595, 68 S.Ct. 222, 228, 92 L.Ed. 210
(1948)

Byars v. United States, 273 U.S. 28, 29, 47 S.Ct. 248, 71 L.Ed. 520 (1927)

He purchased a copy of the same magazine at three of the stands, a copy of

another edition of this magazine at a fourth stand, and a copy of one other
magazine at the fifth stand

10

Explanatory of the constitutional deficiencies in Marcus the Court, at 367 U.S.

732-733, 81 S.Ct. 1716-1717, 6 L.Ed.2d 1127, said: '* * * The warrants gave
the broadest discretion to the executing officers; they merely repeated the
language of the statute and the complaints, specified no publications, and left to
the individual judgment of each of the many police officers involved the
selection of such magazines as in his view constituted 'obscene * * *
publications.' So far as appears from the record, none of the officers except

Lieutenant Coughlin had previously examined any of the publications which

were subsequently seized. It is plain that in many instances, if not in all, each
officer actually made ad hoc decisions on the spot and, gauged by the number
of publications seized and the time spent in executing the warrants, each
decision was made with little opportunity for reflection and deliberation. As to
publications seized because they appeared on the Lieutenant's list, we know
nothing of the basis for the original judgment that they were obscene. It is no
reflection on the good faith or judgment of the officers to conclude that the task
they were assigned was simply an impossible one to perform with any realistic
expectation that the obscene might be accurately separated from the
constitutionally protected. They were provided with no guide to the exercise of
informed discretion, because there was no step in the procedure before seizure
designed to focus searchingly on the question of obscenity. * * * In
consequence there were suppressed and withheld from the market for over two
months 180 publications not found obscene. The fact that only one-third of the
publications seized were finally condemned strengthens the conclusion that
discretion to seize allegedly obscene materials cannot be confided to law
enforcement officials without greater safeguards than were here operative. * *
*'
11

The quotation is from the opinion of Mr. Justice Brennan in which Warren,
C.J., and Douglas J., join supporting the judgment of the Court. There is no
majority opinion for the Court

12

See Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 2 L.Ed.2d 1460
(1958)

13

See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879
(1949); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327
(1959)

14

See Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 4 L.Ed.2d 134
(1959); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436
(1948); United States v. Di RE, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210
(1947)

15

We adopt that portion of the District Court's opinion, 198 F.Supp. 67 at 70-71,
discussing Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d
1669 (1960). It is undisputed here that it makes no difference, from a
constitutional standpoint, whether the search and arrests were made by federal
or state authorities. In federal courts, the test as to the reasonableness of the
search is one of federal law. Elkins v. United States, supra

16

United States v. Coplon, 185 F.2d 629, 640 (2d Cir. 1950), cert. denied, 342

U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 (1952)