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Denver Criminal Defense Attorney: Overview of Lo-Ji v. N.Y. on Search Warrants

In 1979, the United States Supreme Court decided Lo-Ji Sales, Inc. v. New York. In that case the court addressed several issues related to search warrants and their execution.

Factual Information

In that case, a New York State Police investigator bought two films from the defendant’s adult bookstore. The investigator believed these films violated state obscenity laws and took them to the Town Justice for viewing.

The Town Justice issued a warrant for the search of the adult bookstore and seizure of other copies of these two films.

The investigator also sought seizure of “similar” films and printed matter portraying similar acts. The investigator did not specifically list or describe any of these other “similar” items in seeking the search warrant.

The Town Justice also signed a warrant for the arrest of the store clerk who sold the films to the investigator.

The Town Justice went with the investigator and other law enforcement officials conducting the search to determine what other items in the bookstore also violated the state obscenity laws and could be seized.

The clerk was arrested and informed of the search warrant.

After seizing hundreds of items, police entered these items into the search warrant to be seized which the Town Justice signed after the search.

The Supreme Court of the United States said that this is the type of actions the Fourth Amendment was intended to protect against.

Fourth Amendment Violation for Not Particularly Describing Things to be Seized Prior to Search

The Court noted that except for the two films purchased by the investigator, the warrant did not “particularly describe[e]” any other “things to be seized” as required by the Fourth Amendment to the United States Constitution.

The Fourth Amendment did not permit the officials conducting the search to determine what items were likely obscene and then seize them.

The Fourth Amendment also does not permit open-ended warrants to be later completed while the search and seizure is being conducted or after it is completed.

The Supreme Court said that the search in this case went far beyond the search and seizure of copies of the two films purchased by the investigator.

Fourth Amendment Violation for Not being Issued by a Detached and Neutral Judicial Officer

The Court also emphasized that in order to be valid, search warrants must be signed by a neutral and detached judicial officer.

In this case the judicial officer became at least a member of the search team and police operation, if not the leader. In participating in the search, the judicial officer was not acting as a judicial officer, but acted instead as an adjunct law enforcement officer.

Retail Store Nature of Location Does Not Change Ruling

Additionally, the United States Supreme Court held that just because a retail store invites in the public, it does not consent to a wholesale search and seizure that does not comply with the Fourth Amendment.

In this case, the Town Justice did not view films as a paying customer after entering the store. In opening packages to view material the Town Justice did not view them as a customer would ordinarily see them.

There Could be No Free and Voluntary Consent to Search

The Court held that the store clerk could not be said to have consented freely and voluntarily to the search after being placed under arrest and informed of a search warrant.

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