MARYLAND v. MACON

Transcript: 

ORAL ARGUMENT OF DEBORAH H. K. CHASANOW, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Burger: Ms. Chasanow, you may proceed whenever you're ready.

Mr. Chasanow: Mr. Chief Justice and may it please the Court:

The primary issue in this case is whether the purchase of magazines in an adult bookstore by an undercover vice squad officer can ever be an unconstitutional seizure.

The facts are simple.

On May 6th of 1981, Detective Ray Evans went to the Silver News Bookstore, an adult bookstore in Prince George's County, Maryland.

He browsed through the magazines and he selected a package of two of them.

He took them to Respondent and purchased them with a $50 bill whose serial number had been recorded.

He received his change and the magazines and he left the store.

In a nearby parking lot, Detective Evans met two other experienced vice squad officers, Detectives Sweitzer and Fickinger.

The three of them examined the magazines in their entirety.

They concluded that there was probable cause to believe that these two magazines were in fact obscene.

The three then went back into Silver News, arrested Respondent, and retrieved the $50 bill used to effect the purchase.

Unidentified Justice: Was that for the purpose of ensuring they'd have the evidence that they were paid for?

Mr. Chasanow: Yes, Mr. Justice, that's what the detectives testified, that they retrieved the money as evidence of the purchase.

Unidentified Justice: Well, it seems to have ricochetted on them, hasn't it?

Mr. Chasanow: Yes, it definitely did.

The $50 bill was not in fact introduced into evidence at the trial, as it turned out.

That was, however, the justification for the seizure.

Unidentified Justice: Did they give back the change?

Mr. Chasanow: No, the change is still in police custody as of this moment.

Unidentified Justice: Earning interest.

Mr. Chasanow: Yes.

[Laughter]

Unidentified Justice: Does the record show what magazines these were?

Mr. Chasanow: Yes.

The names were No. 10> ["], and No. 1> ["], are the names of the magazines.

They are in the charging document.

The Respondent was allowed to close the bookstore.

This arrest occurred about 7:20, 7:30 in the evening.

He was taken to the police station where a statement of charges was filed.

He was presented before a commissioner who determined probable cause, and Respondent was released on his own recognizance within approximately three hours of the arrest.

Respondent's motion to suppress the magazines was denied by the trial judge and, as I said, the magazines but not the $50 bill were introduced at the jury trial.

After conviction and on direct appeal, the Maryland Court of Special Appeals reversed the conviction, finding that the magazines were the fruit of a constructive seizure, a seizure rendered illegal by Respondent's warrantless arrest and the retrieval of the purchase money.

The Court of Special Appeals held that the exclusionary rule required suppression of the magazines under these circumstances.

The State contends that there are two reasons why the Court of Special Appeals' decision is wrong, and if this Court finds in our favor on either of these grounds reversal of the Court of Special Appeals is required.

First, the magazines were purchased before any alleged illegality occurred.

The warrantless arrest and retrieval of the money, even if illegal, occurred after the magazines were purchased by the police, and thus the magazines cannot be the tainted fruit of any poisoned tree.

Our second argument is that the warrantless arrest and the retrieval of the money were in fact constitutional, so that there is no poisoned tree to taint anything.

Only if both of these arguments are rejected will the Court need to reach the secondary double jeopardy issue.

The exclusionary rule, which of course is a judicially designed device, is intended to deter unlawful police conduct by denying government the fruit of its own unconstitutional behavior.

Here the Maryland Court of Special Appeals has twisted that rule, using it to punish the government for alleged illegal conduct by excluding from evidence something that is not the fruit of the alleged illegality.

It held that the purchased magazines must be suppressed to deter the police from making warrantless obscenity arrests in the future.

It has in essence created a seed of the poisonous tree doctrine.

That is, but for this purchase there would have been no later warrantless arrest and in their view no illegality.

The court has invalidated the conduct of an officer who merely entered a bookstore open to the public, browsed through magazines offered for sale, selected a package of two of them, and bought them with United States currency, all because it found that some later police conduct was unconstitutional.

But we think that later arrest, even if illegal, should not trigger a backward-looking fruit of the poisonous tree or seed of the poisonous tree analysis.

This Court has made crystal clear that the exclusionary rule is meant to return the government to the same position it would be in had there been no illegal conduct.

It is not meant merely to punish the government.

The police may not benefit from their misdeeds; however, we should neither be put in a worse position than we would have been had there been no warrantless arrest even if that arrest is illegal.

The police here could have purchased the magazines as they did and not returned to arrest Respondent without a warrant.

The blunder, if indeed there was one, did not affect the obtaining of this evidence.

The exclusionary rule does not apply under these circumstances--

Unidentified Justice: None of the evidence educed at trial was the product of the arrest?

Mr. Chasanow: --It's our position absolutely nothing came in that was the fruit.

There was no statement uttered by Respondent at the time of the arrest that came in.

The money did not come into evidence.

So no, nothing that transpired at or after the arrest was produced as evidence.

The detective testified about the purchase and the magazines were introduced.

Unidentified Justice: But you took the money.

Mr. Chasanow: Yes, we did.

We seized the money as evidence and once it's no longer--

Unidentified Justice: You took it, but you didn't use it as evidence.

Mr. Chasanow: --That's correct.

Unidentified Justice: But you did take it.

Mr. Chasanow: We did seize the money as evidence in this case.

We submit there was no search and no seizure when Detective Evans went into the bookstore and bought the magazines, even if he intended to follow the purchase with a warrantless arrest.

He entered only the public area of the bookstore and observed only what any patron could see.

In selecting the package of magazines, he did what a normal customer could do.

There was no privacy interest infringed by the actions of Detective Evans, and unless there is an invasion of a protected privacy interest, this Court has said there is no search.

Similarly, the purchase did not interfere with Respondent's possessory interest in the magazines, the necessary predicate for finding a seizure.

Whatever possessory interest he had in the magazines was voluntarily relinquished when he sold those magazines to Detective Evans.

Thus, we submit the magazines were not obtained as the fruit of a Fourth Amendment violation or a Fourth Amendment intrusion in any sense, and without the threshold of a Fourth Amendment invasion there is no need to examine the reasonableness of that conduct in light of any heightened First Amendment protection.

To emphasize, the purchase was complete here before any asserted illegality took place.

The purchase itself did not implicate the Fourth Amendment.

There was no search and no seizure.

To that point, the officer had done no more than any ordinary paying customer could have done, and it is simply a distortion of the exclusionary rule to apply it to the purchase of these magazines.

If it is necessary to reach the issue of the constitutionality of the arrest, we further submit that the First Amendment does not prohibit an otherwise permissible and validness warrantless arrest for the unlawful distribution of obscene material.

The only reason that it would is if the warrantless arrest effected a prior restraint that would not have occurred with an arrest pursuant to a warrant.

A prior restraint, of course, is something that brings to an abrupt halt an orderly and presumptively legitimate distribution or exhibition.

In this case there was no restraint on the distribution of the two magazines, as they had already been sold to the officer.

There are arguably two other aspects to the claimed First Amendment restraint here: first, the restraint that allegedly occurred when Respondent closed the store at around 7:30 in the evening upon his arrest; and secondly, the potential chilling effect on others who hear of the prosecution in this case.

Neither singly nor together do those concerns justify prohibiting all warrantless arrests on obscenity contexts.

The warrantless arrest, unlike a warrantless seizure of items, does not go unreviewed for very long.

When the police seize an item without a warrant, the burden both legally and practically is on the aggrieved party to bring some action for its return.

When the police arrest a defendant, however, without a warrant, they must bring that person before a judicial officer expeditiously.

A warrantless arrest is a temporary seizure.

In this case, the time between arrest and release was less than three hours.

This temporary interference with Respondent's liberty interest simply cannot be equated with the permanent seizure of all of the books in a bookstore.

This warrantless arrest did not effect a prior restraint.

Unidentified Justice: May I ask one question.

I take it your argument in essence is that even if the arrest was unconstitutional in some way, the wrong remedy was applied because they should not have suppressed the material that had previously been purchased.

Mr. Chasanow: That is correct.

Unidentified Justice: So that we can assume for purpose of analysis that maybe there was a violation of the First Amendment or something by making that arrest.

Is it conceivable, because I notice the Court of Appeals relied on Hawaii cases and Texas cases and all, that your Court might say, well, as a matter of state law we think we'd like to impose this remedy as a preventative against future things of this kind?

Is there any Maryland body of law at all on whether they do impose their own remedies in these situations?

Mr. Chasanow: Maryland has not even fashioned its own exclusionary rule under our Article 26 of the Declaration of Rights.

We had a statute pre-Mapp that dealt with an exclusionary rule for unlawful search and seizure.

That has been repealed in the wake of Mapp.

So our courts have never indicated a propensity toward developing an exclusionary rule absent a command from this Court under the federal Constitution.

So no, there is no indication that our court would do it independent of the First and Fourth Amendments.

Unidentified Justice: Of course, there's nothing... we couldn't prevent them from doing it if they wanted to?

Mr. Chasanow: No.

There is nothing, however, in this opinion which remotely indicates an independent state ground for their decision.

Unidentified Justice: So what you're really asking us to decide is that there's no federal constitutional requirement that there be exclusion on these facts?

Mr. Chasanow: Absolutely, yes.

As to the second potential restraint, it is true that the fact of any prosecution will deter some others from distributing similar magazines, and I think we hope that it does.

The purpose of the criminal justice system, furthered by the public nature of the proceedings and any sentence handed out, is to deter others from violating the same law.

General deterrence is part of the criminal justice system.

We want people to be persuaded not to violate the law because of the fear that what has happened to others who have violated the law will also happen to them.

But this Court recognized in Miller that the inherent deterrent effect of making the distribution of obscenity illegal is not an impermissible chill on First Amendment rights.

The protections in the criminal justice system guarantee a forum to adjudicate obscenity issues, and a single warrantless arrest is not the equivalent of a system of informal censorship.

It need not be flatly prohibited in order to protect First Amendment rights.

The making of a warrantless arrest for a misdemeanor committed in the police officer's presence is ordinarily permissible under the Fourth Amendment, and we submit there is no need to alter that rule under the circumstances of this case.

The primary defect in the Court of Special Appeals' decision is to use the Fourth Amendment exclusionary rule to punish the police for conduct occurring after the purchase.

That distortion must be corrected.

There is a fruit of the poisonous tree doctrine; there is no seed of the poisonous tree doctrine.

The secondary error was to hold that the warrantless obscenity arrest here was unconstitutional.

We feel that is an unnecessary extension of the protections of the First Amendment, protections required for the seizures of material in other circumstances.

We ask that this Court reverse the judgment of the Court of Special Appeals.

I'd like to reserve my remaining time.

Chief Justice Burger: Mr. Sandler.

ORAL ARGUMENT OF BURTON W. SANDLER, ESQ., ON BEHALF OF RESPONDENT

Mr. Sandler: Mr. Chief Justice, may it please the Court:

I might respectfully suggest that the factual situation in the case that's before you at this time is a little more complicated and a little more elaborate than my adversary has suggested to you.

I think that in order for the Court to consider the application of the legal philosophies that have emanated from this Court in connection with the factual situation here, I would be failing in my duty if I didn't advise you of some additional facts.

This situation involving the Respondent in this case arose as a result of police investigation in a particular area of Maryland, Upper Marlboro-Prince George's County, of alleged sale or distribution of obscene material in what's called adult bookstores.

Prior to the arrest in the situation involving the Respondent, there occurred approximately 40, as I recall it, situations where the police had allegedly made purchases of what they felt was obscene material.

The arrest of the Respondent culminated in the completion of the investigation, which took place for about two months.

And in the joint appendix we have the transcript of testimony of the police officers and the other individuals involved in the case.

But the important fact in connection with this case is this.

The police had themselves, in connection with this investigation, designed a procedure that they felt that they would follow in searching for or looking for or obtaining material that was obscene.

Unidentified Justice: How do we find that in the record?

Mr. Sandler: Your Honor, that would appear--

Unidentified Justice: You say they designed a pattern.

I take it you're addressing the question of paying for the magazine and then taking the money back?

Mr. Sandler: --Well, it went a little beyond that, Your Honor.

In the joint appendix, references to the pages of the transcript and reproductions of the pages of the transcript of the officers' testimony at the suppression hearing appear.

There is additional testimony that appears in our brief with reference to the pages appearing in the actual transcript that weren't included in the joint appendix.

Unidentified Justice: Whatever the plan, was there a consummated sale of the two magazines when the officer handed the bill to the clerk and the clerk handed him the books?

Was that the sale of the magazines?

Mr. Sandler: Superficially, Your Honor, without arguing the intent of the officer or the intent of the clerk, I would have to for the purposes of argument agree with you that at that point--

Unidentified Justice: What has the intent of the clerk got to do with it, or of the officer?

Mr. Sandler: --I think the intent of the clerk and the intent of the officer are important in determining whether or not there was in fact a real sale.

Unidentified Justice: Well, suppose they paid for it by a check and three days later the check had been returned NSF.

Mr. Sandler: Then we might be involved in an element of fraud, obtaining merchandise without the intention of paying for it.

What I'm suggesting to you, Mr. Chief Justice, respectfully here is this: that there are some facts leading to this conduct that you refer to as a sale that I think are important for the Court to consider in reaching the finer conclusion as to: whether or not, A, we have an unconstitutional search here in violation of certain precedents; and B, whether or not we have an unconstitutional seizure here; and C, whether or not we have an unconstitutional arrest in light of First Amendment principles.

Unidentified Justice: Well, if it was a legal sale do you have any case?

Mr. Sandler: I would think that if that was the only factual situation that the Court had to reach in coming to a conclusion, then obviously I would not have a case.

And if the parties were different, in light of the precedents of this Court, I think we would not have a case.

Your Honor, the facts that I would like to bring to your attention, with your permission, are that prior to the time that the officer actually paid for the material that he selected he went into the store and found two magazines.

They were in plastic.

The testimony that's referred to in the joint appendix indicates... and in the Petitioner's brief... that he saw it was unsealed and he took the magazine out of the plastic and read it from cover to cover.

At that point he put it back in the plastic, went up, paid for it, it was placed in a paper bag, he took it out to two other detectives that were waiting outside, and they again took it out of the paper bag... the plastic, and reviewed it from cover to cover, and at that point they all converged into the store and arrested the Respondent, he was placed in handcuffs, customers were required to leave, and the store was closed.

Now, what I am suggesting to Your Honor is that the Court of Special Appeals of Maryland in its opinion, which appears in the joint appendix, indicated that it limited its decision to First Amendment issues only.

I would... we are under the impression, Your Honor, that a long line of decisions coming from this Court and federal courts and state courts agree with the proposition that there is a different procedure that must be followed by states in attempting to regulate the alleged distribution or sale of obscene material because of the First Amendment intertwining with the Fourth Amendment.

And because that procedure has been by court decree, I respectfully suggest, then the state cannot create their own procedures in attempting to regulate the distribution of obscene material.

When they do that, they run counter to the precedents emanating from this Court in order to preserve First Amendment freedoms.

This case is a classical situation with facts almost identical to the facts that occurred in Roaden versus Kentucky, and in that case, Your Honor, the Court did refer to the fact that the Court of Appeals of Kentucky declined to specifically follow a decision of a three-judge federal court in Ledesma versus Perez that held unconstitutional warrantless arrests and warrantless seizures of allegedly obscene material.

That three-judge federal court, Your Honor, made a comment that I think... and I say this respectfully... might be applicable to the situation here, and that is that... and as the Respondent also agrees... we appreciate the rights of the states to regulate the distribution of obscene material.

But the courts have held that in order to do that there must be a procedure that focuses searchingly on the issue of obscenity.

In other words, Roaden held that material such as are involved in the situation here are presumptively protected under the First Amendment.

The setting in which they're distributed or exhibited is presumptively protected.

And in order to evaporate or lift that presumption of the material, as opposed to the presumption of innocence of the individual, there must be a judicial process, not an adversary hearing but an ex parte scrutiny by a neutral and detached judicial officer who determines the probable cause that the crime of obscenity is being committed.

When that happens, a police officer who is looking for or gathering evidence of a crime is armed with the necessary probable cause to be able to determine that a crime is being committed in his presence and then make an arrest without a warrant and a seizure without a warrant.

In this case, Your Honor, the Fourth Amendment exclusionary rule is triggered by the unlawful search in the beginning when the officer went into the store, took the magazine out of the plastic, and read it from cover to cover.

Your Honor--

Unidentified Justice: That was unlawful?

Mr. Sandler: --That was an unlawful unconstitutional search without a warrant.

Unidentified Justice: Why?

Mr. Sandler: Because, Your Honor, in the case of Lo-Ji Sales, I think the implication of this Court in that case as a result of the conduct of police officers, in view of a town justice who had accompanied them to the store based on a warrant that he had issued for the search and seizure of two films they had purchased and he had reviewed--

Unidentified Justice: But that's not this case.

Mr. Sandler: --No, sir.

But the legal precedent in that case, the Court said--

Unidentified Justice: He gave a $50 bill.

Mr. Sandler: --They gave him a $50 bill.

Unidentified Justice: A $50 bill.

Mr. Sandler: Yes, sir.

And then after they--

Unidentified Justice: They took the change.

Mr. Sandler: --They took the $50 and kept the change.

Unidentified Justice: That's right.

Mr. Sandler: Yes, sir.

And then after they kept the change--

Unidentified Justice: Is that any different from Roaden and any other case?

Mr. Sandler: --It's different, Your Honor, in that context, that they kept the... they got the $50 bill back.

Unidentified Justice: Well, whatever conduct that is, they never seized the magazines.

Mr. Sandler: It would be my impression, Your Honor--

Unidentified Justice: They didn't seize them.

Do you recognize the difference between seizing and buying?

Mr. Sandler: --Yes, sir.

I would be under the impression that when a customer goes into a store, he doesn't take the owner's property without due process of law.

When the police officers kept the money, the change, and then took the $50 bill back, at that point--

Unidentified Justice: That was after he was arrested.

Mr. Sandler: --Yes, sir.

At that point there was a seizure that wasn't incident to a lawful arrest.

They impounded something without due process of law.

Unidentified Justice: The $50 bill?

Mr. Sandler: The $50 bill, the change, and the two magazines.

Unidentified Justice: Well, but the $50 bill was never offered in evidence, I take it.

Mr. Sandler: The prerogative... I believe, and I say this respectfully, Your Honor, the reason it wasn't offered is because under the Maryland statute a charge of distribution of obscene material doesn't necessitate--

Unidentified Justice: A purchase?

Mr. Sandler: --money.

It's transfer of possession with or without consideration.

Unidentified Justice: But if it wasn't offered in evidence, there's no Fourth Amendment problem because the exclusionary rule is designed to suppress evidence that might be used at trial.

Mr. Sandler: The magazines were offered into evidence.

Unidentified Justice: Yes.

But your Court of Appeals didn't rest its decision on the fact that it felt that the magazines hadn't been validly purchased.

Mr. Sandler: Yes, sir, it did.

They felt that the purchase of the magazine was a preconceived seizure and they held it to be a constructive seizure of presumptively protected material, because of the fact that when the officer went into the store he was instructed to look for material that was distasteful to him.

And they felt that the combination of all the facts of the 40 arrests and 40 alleged purchases in totality represented a preconceived scheme to circumvent the warrant requirements that emanated from Roaden and from Heller, Marcus, and A Quantity of Books versus Kansas.

Unidentified Justice: Well, I didn't read their opinion as turning on the fact that the $50 bill was taken back by the police after the purchase.

Mr. Sandler: They discussed the fact that the $50 bill was taken back, found in the cash register drawer.

A search for that was made and they kept the change.

They also felt that the impoundment of the magazines plus the money amounted to a constructive seizure.

Unidentified Justice: Well, of course, if the magazines were purchased you don't have any question of impoundment.

You can keep what you buy.

A policeman can do it the same as any ordinary citizen.

Mr. Sandler: I could agree with you... I couldn't agree with you more wholeheartedly, Your Honor.

You can keep what you buy.

But you can't take something and keep the money which you paid for it in the same process and give due process of law to the owner of the material.

And the fact that they're police officers I wouldn't think changes the situation.

I don't argue with the fact that there has to be some undercover operation to secure evidence.

But we have a First Amendment situation here, Your Honor, and this Court has been consistent in holding.

The money's not an important issue here before the Court, nor was it really an important issue before our appellate court.

Unidentified Justice: But Mr. Sandler--

Mr. Sandler: Yes, sir.

Unidentified Justice: --but your argument seems to me to depend entirely on the $50.

Mr. Sandler: No, sir.

I don't take that $50 bill into consideration at all.

It's not important to my argument at all, Your Honor.

Unidentified Justice: Is it important to your argument that the police retrieved... not only kept the magazines and the change, but retrieved the $50 bill?

Mr. Sandler: It's important to my argument only to the extent that once they kept or retrieved the $50 bill and kept the change that they already had and then retained the magazine, at that point there was a seizure.

I might suggest to Your Honor, so that you might get the impact of what I'm saying, I'm suggesting that in this case there was an initial search without a warrant that's in violation of--

Unidentified Justice: Well, tell me, Mr. Sandler, suppose before going back to the store the officers had gone to a local magistrate and asked his view of the obscenity or not of those magazines, and he had said, yes, he thought they were.

Then they went back and everything else had followed.

Would you be here?

Mr. Sandler: --I don't think so.

Unidentified Justice: Even though they took back the $50 bill and kept the change?

Why wouldn't there have been a seizure then under your theory?

Mr. Sandler: Your Honor, I will... if they had gone to a magistrate and he had made a determination of probable cause and they went back with a warrant and arrested the Respondent, then I wouldn't think that I would have any argument in connection with the issue of arrest.

I still feel, though, that I would have an argument under Roaden and in Heller in connection with the search and seizure without a warrant.

My suggestion, if you will, is that there is a First Amendment due process issue involved in these cases that places special constraint on the Fourth Amendment.

And the only way to apply those... and Justice Marshall, in connection with your inquiry as to the factual situation here as opposed to Roaden, the facts in Roaden were that the deputy sheriff paid an admission to go to an outside, outdoor theater.

He viewed a film, and after he viewed the film it was his opinion that it was obscene.

He went up into the projection room and he arrested the clerk, the manager first, and then he seized one copy of the film because in his opinion the film was obscene.

Unidentified Justice: I know the facts in the case.

Mr. Sandler: The only difference in Roaden and in our case is that the sheriff didn't take back the money that he paid to go see the film.

Unidentified Justice: That's why I've asked the question three times here.

Mr. Sandler: In this case they took back--

Unidentified Justice: And if you haven't gotten it by now it's too late.

Mr. Sandler: --Yes, sir.

What I'm suggesting is that when that did happen, then the seizure or constructive seizure of the magazines appears in this case as well as it did in Roaden.

But the problem that's presented in this case is that Roaden and Heller and Lo-Ji and all of their progeny stand for the proposition that the heavy burden--

Unidentified Justice: Isn't one of the differences with Roaden that in Roaden they seized it after they arrested?

Mr. Sandler: --The argument in Roaden was there was a seizure--

Unidentified Justice: And this was rather that they bought it--

Mr. Sandler: --incident to an arrest.

Unidentified Justice: --before they arrested him.

Mr. Sandler: Yes, sir.

Unidentified Justice: And you don't see any difference?

Mr. Sandler: I do see a difference.

Unidentified Justice: Oh, you do.

Thank you.

Mr. Sandler: I see, Your Honor, in this case a search before an arrest and a seizure after an arrest.

In addition, I see a search before an arrest, a search after an arrest, and a seizure after an arrest.

Unidentified Justice: You said there was a search as soon as he tore the transparent plastic envelope?

Mr. Sandler: Yes, Your Honor.

In the case of Walters versus U.S., 447 U.S. 649... which is not cited in our brief, Your Honor, by the way... that's a case where some boxes of allegedly obscene material were shipped and reached a private party by mistake.

And they opened it and found what they thought to be obscene material and they called the FBI, but they had placed the material that they saw back in the box before the FBI got there.

When the FBI got there, they took the material and they took it out of the box, put it on a projector, and viewed it.

They obviously... in that case, the court held that they were in lawfully in possession of it.

But the viewing of it or the screening of it amounted to, because of the First Amendment, an unlawful search without a warrant, and the Fourth Amendment exclusionary rule was triggered as a result of the expansion of the private search.

What I am suggesting here is that even if the officer was lawfully in possession of the magazines as a result of the purchase, then the viewing or the screening by the officer which gave him evidence to believe he could make an unlawful arrest is the violation and the fruit of unlawful police conduct that the Fourth Amendment, in light of the First Amendment, excludes the use of.

I am only, Your Honor, for the sake of argument agreeing that the purchase was the vehicle whereby the officer lawfully obtained the material.

The Court of Special Appeals didn't feel that the purchase was a purchase.

They felt it was constructive seizure.

For the purposes of the answering the question and only for that purpose assuming for the sake of argument it was legal.

But under the Walters theory, if the officers got the material lawfully they didn't have the right, as a result of Roaden and Heller, to screen it or view it without taking it to a magistrate, neutral and detached, who could focus searchingly on the issue of obscenity, make the probable cause determination, and then at that point issue a warrant to either seize it and arrest the violator.

I suggest, Your Honor, that in the case of Roaden, when they referred to that three-judge court in Ledesma versus Perez, that court recognized that unlawful arrests and unlawful seizures without a warrant in light of the First Amendment were unconstitutional.

They suggested that the state has a right to regulate the distribution of obscene material, but that they might have to incorporate in those regulations provisions immunizing alleged violators for any criminal conduct prior to a judicial determination ex parte, if you will, by a neutral and detached judicial officer, eroding or evaporating the presumption of protected expression in light of that individual's conduct, because it's his conduct that we're considering, not the magazine.

And if the magazine, under the theory of Roaden, is presumptively protected and the setting in which it's distributed is presumptively protected prior to the erosion or evaporation by the judicial process, how can his conduct constitutionally by operation of law be criminal, and how can that give rise to probable cause for a crime committed in the presence of a police officer?

I would think, Your Honor, that to allow police officers to make the initial determination that material is outside the ambit of the First Amendment for the purposes of either search, seizure or arrest places heavy burden on police officers who come from different environments and have different thought processes and different desires and different tastes.

That's why the courts have been consistent in requiring the intervention of a neutral and detached judicial officer to focus searchingly on the issue of obscenity and provide the vehicle, the constitutional vehicle, for the prosecution or the criminal process to begin.

Without that, to allow what happened in this case under the rubric of a purchase, where you have 40 such situations, where the police officers had decided with their superiors that they were going to send someone in to look for material distasteful to them, which is certainly contrary to the concept of Miller versus California or Roth, which define the guidelines that must be used in determining materials outside the ambit of the First United States, if we allow this to happen and if the Court of Special Appeals' opinion is reversed, what will happen is that police officers of varied tastes can go into department stores, pick up a magazine, pick up a book, and in his opinion find it distasteful to himself, make an arrest without a warrant, close the store down, and make a seizure of the material.

That hasn't existed in light of the First Amendment, based on the precedents that are to date.

And all we're suggesting, in conclusion, Your Honors, is that what the police did in this case, looking at all of the facts, was to devise a method to secure evidence for obscenity prosecutions.

They only needed one magazine and one prosecution to get a conviction.

They didn't need 40 or 18.

But this was the culmination of two months of investigation and alleged purchases and alleged arrests that resulted in this case coming to this Court.

What they did was totally contrary to all of the theories that have emanated from this Court and other courts in connection with the preservation of First Amendment rights as it revolved around the Fourth Amendment.

A police officer has never been allowed, other than in exigent circumstances, now or never circumstances, to make the initial determination of obscenity or probable cause for obscenity.

He can't determine by operation of law that a crime is being committed in his presence to either arrest without a warrant, search without a warrant, or seize without a warrant.

And this case has the elements of a search, of an arrest, contrary to all constitutional law, and for that reason I respectfully suggest the Court of Special Appeals' opinion should be sustained.

Thank you.

Chief Justice Burger: Do you have anything further, Ms. Chasanow?

REBUTTAL ARGUMENT OF DEBORAH H. K. CHASANOW, ESQ., ON BEHALF OF PETITIONER

Mr. Chasanow: I just do want to clarify for the Court that the Court of Special Appeals' holding was that the warrantless arrest was the unconstitutional behavior, that that arrest should not go unremedied, and so in this case the only remedy available was to suppress the magazines obtained in connection with that arrest.

We submit that that, of course, was in error.

Those magazines were purchased prior to any possible illegality and were therefore properly admitted into evidence.

Thank you.

Chief Justice Burger: Thank you, counsel.

The case is submitted.