
    Patrick D. Monserrate, as District Attorney of Broome County, Respondent, v Upper Court Street Book Store, Inc., et al., Appellants, et al., Defendants.
    Argued January 7, 1980;
    decided February 12, 1980
    
      POINTS OF COUNSEL
    
      David Gerald Jay for Upper Court Street Book Store, Inc., appellant.
    I. It was impossible for the County Judge to have spent sufficient time in order to "focus searchingly” upon the question of obscenity as to the items directed to be seized. (Monserrate v Upper Ct. St. Book Store, 62 AD2d 419; Marcus v Search Warrant, 367 US 717; United States v Weaver, 336 F Supp 558; United States v Wallen, 315 F Supp 459; Slettehaugh v Tarr, 322 F Supp 180.) II. The Magistrate who issued the search warrant did not act in a neutral and detached manner. III. The warrant issued by the court was not sufficiently particularized to comport with the requirements of the Fourth Amendment.
    
      William E. Seekford, of the Maryland Bar, admitted on motion pro hac vice, and Thomas E. Reilly for Allies Boulevard Book Store, Inc., and another, appellants.
    I. The procedures employed lacked adequate safeguards mandated in seizing and suppressing First Amendment materials under the Fourth and Fourteenth Amendments. (Roth v United States, 354 US 476; Miller v California, 413 US 15; Weeks v United States, 232 US 383; Mapp v Ohio, 367 US 643; Huffman v Pursue, Ltd., 420 US 592; Heller v New York, 413 US 483; Lee Art Theatre v Virginia, 392 US 636; Roaden v Kentucky, 413 US 496; Alberts v California, 354 US 476; Marcus v Search Warrants, 367 US 717; Bantam Books v Sullivan, 372 US 58.) II. The court below erred in not permitting the suppression motion to be heard and determined. (Bantam Books v Sullivan, 372 US 58; Bunis v Conway, 17 AD2d 207; Sunshine Book Co. v McCaffrey, 4 AD2d 643; Freedman v Maryland, 380 US 51; United States v Thirty-Seven Photographs, 402 US 363; Southeastern Promotions v Conrad, 420 US 546.) III. This is a quasi-criminal proceeding, illegally seized evidence is inadmissible and portions of complaints founded thereon can be dismissed. (Rogers v United States, 97 F2d 691; Chambers v Rosetti, 36 Misc 2d 779; Chmielewski v Rosetti, 59 Misc 2d 335; Herndon v City of Ithaca, 43 AD2d 634, 35 NY2d 956; Phillips v Kantor & Co., 31 NY2d 307; Matter of Mastrianni, 55 AD2d 784; People v Gatti, 16 NY2d 251; People v Skipwith, 22 AD2d 960; Boyle v Kelley, 42 NY2d 88.)
    
      Patrick D. Monserrate, District Attorney (Robert S. Rose of counsel), respondent pro se.
    
    I. The procedures employed provided adequate scrutiny and review of the materials added on the scene to the pre-existing warrants. (People v Allende, 39 NY2d 474; Katz v United States, 389 US 347; People v Potwora, 44 AD2d 207; Kaplan v California, 413 US 115.) II. The warrants themselves, and as executed, provide sufficient safeguards against the exercise of police discretion. (Marcus v Search Warrants, 367 US 717; A Quantity of Books v Kansas, 378 US 205; Heller v New York, 413 US 483.) III. The recent decision of the United States Supreme Court in Lo-Ji Sales v New York should not control the case at bar. (Heller v New York, 413 US 483.) IV. The motion to suppress should not have been decided by Special Term without a formal hearing on the issue, nor should it have directed a return of the evidence and dismissal of a portion of the complaint on affidavits alone. (People v Skipwith, 22 AD2d 960; Boyle v Kelley, 42 NY2d 88; Phillips v Kantor & Co., 31 NY2d 307; Matter of Mastrianni, 55 AD2d 784.)
   OPINION OF THE COURT

Per Curiam.

The order of the Appellate Division should be reversed, without costs, and the order of Supreme Court, Broome County, reinstated. The question certified is answered in the negative.

Before a Magistrate may properly issue a search warrant, he must first conduct a "full and searching inquiry into the facts on which the warrant application is based.” (People v Potwora, 48 NY2d 91, 95.) In this case, County Court fulfilled this obligation with respect to the allegedly obscene materials originally presented to it in support of the warrant application and, thus, these materials were properly seized. However, it is inconceivable that the County Court Judge could have examined the literally thousands of other items seized on the premises and not presented to him in the original warrant application with sufficiently close scrutiny given the limited duration of his inquiry. We do not reach the general proposition whether an on-the-spot inspection of allegedly obscene materials by an issuing Magistrate could ever result in a valid seizure; on the facts of this case we are compelled to conclude that the materials inspected at the scene of the search were illegally seized. (Lo-Ji Sales v New York, 442 US 319.)

This illegally seized evidence was properly suppressed by Special Term. Where, as here, a civil action carries with it the potential for the abridgement of fundamental First Amendment rights (see A Quantity of Books v Kansas, 378 US 205; Marcus v Search Warrant, 367 US 717) and embodies, by its very nature, a significant amount of State action (cf. Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647, cert den 396 US 840; Incorporated Vil. of Laurel Hollow v Laverne Originals, 17 NY2d 900), the defendant must be afforded an opportunity to test the constitutionality of the procedures used to obtain the evidence against him and is entitled to seek the suppression of any evidence found to have been illegally seized. (Cf. People ex rel. Piccarillo v New York State Bd. of Parole, 48 NY2d 76, 81.)

Having suppressed the illegally seized evidence, Special Term properly dismissed the complaint insofar as it was based upon that evidence. A CPLR 6330 complaint, seeking to enjoin the dissemination of allegedly obscene materials, can only survive a motion to dismiss upon a showing that there is legally admissible evidence supporting the allegation that such material is obscene. Where no evidence of obscenity may properly be brought before the court, the complaint must be dismissed. Such a dismissal, however, should be without prejudice to the commencement of a new action based upon the same subject matter should evidence of obscenity be lawfully obtained in the future.

One remaining point requires mention. In our opinion, the proper procedure to be followed in a case such as this, where defendant claims that the complaint or a portion thereof is predicated upon illegally seized evidence, would be for the defendant to make a motion to suppress such evidence within the civil proceeding. (Cf. CPLR 3103, subd [c].) However, inasmuch as plaintiff did not object to having the legality of the search tested in a motion to dismiss, it must be said that he acquiesced in the procedures employed in this case.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion.

Order reversed, etc.  