
    The People of the State of New York, Respondent, v. Paul Rothenberg, Appellant.
    Argued April 19, 1967;
    decided May 31, 1967.
    
      Michael I. Winter for appellant.
    I. The search warrant herein was constitutionally defective upon two grounds: (1) It did not particularly describe the things to be seized, and (2) it delegated to the police officer the requirement resting upon the court of making an independent constitutional appraisal as to whether the things to be seized were beyond the pale of the constitutionally protected right of speech and expression. (Mapp v. Ohio, 367 U. S. 643; Stanford v. Texas, 379 U. S. 476; Marron 
      v. United States, 275 U. S. 192; Roth v. United States, 354 U. S. 476; People v. Richmond County News, 9 N Y 2d 578; Manual Enterprises v. Day, 370 U. S. 478; Brown v. Kingsley Books, 1 N Y 2d 177, 354 U. S. 436; People v. Fritch, 13 N Y 2d 119; Jacobellis v. Ohio, 378 U. S. 184; Marcus v. Search Warrant, 367 U. S. 717; People v. Matherson, 16 N Y 2d 509.) II. The affidavit on which the search warrant issued failed utterly to establish probable cause to support the warrant. (People v. White, 16 N Y 2d 270; People v. Marshall, 13 N Y 2d 28; Aguilar v. Texas, 378 U. S. 108; People v. Brady, 16 N Y 2d 186; Ker v. California, 374 U. S. 23; Bell v. United States, 254 F. 2d 82; People v. Rogers, 15 N Y 2d 422; Wong Sun v. United States, 371 U. S. 471; Henry v. United States, 361 U. S. 98; People v. Santiago, 13 N Y 2d 326; People v. McCall, 17 N Y 2d 152; People v. Malinsky, 15 N Y 2d 86; People v. Fino, 14 N Y 2d 160.) III. Defendant was denied a fair trial by the refusal of the court to grant defendant’s request that the identity of Captain Leary’s informer be divulged.
    
      William Cahn, District Attorney (George Danzig Levine of counsel), for respondent.
    I. The description in the search warrant of the items to be seized was adequate. (Roth v. United States, 354 U. S. 476; United States v. Petrillo, 332 U. S. 1; Aguilar v. Texas, 378 U. S. 108; People v. Montanaro, 34 Misc 2d 624; Town of Amherst v. Erie County, 236 App. Div. 58, 236 App. Div. 775, 260 N. Y. 361; Matter of Hardecker v. Board of Educ., 180 Misc. 1008, 266 App. Div. 980, 292 N. Y. 584; Cummings v. Board of Educ., 275 App. Div. 577, 300 N. Y. 611; Mishkin v. New York, 383 U. S. 502; Marcus v. Search Warrant, 367 U. S. 717; Stanford v. Texas, 379 U. S. 476; People v. Matherson, 16 N Y 2d 509; People v. Peskin, 16 N Y 2d 511; Rosen v. United States, 161 U. S. 29.) II. If the precedents of this court be viewed as contrary to the position urged by respondent, those precedents should be overruled. (McCulloch v. Maryland, 17 U. S. 316; Brown v. Board of Educ., 347 U. S. 483; Carroll v. United States, 267 U. S. 132; Husty v. United States, 282 U. S. 694; Brinegar v. United States, 338 U. S. 160; People v. De Lago, 16 N Y 2d 289; Dennis v. United States, 341 U. S. 494; Muller v. Oregon, 208 U. S. 412; Wolf v. Colorado, 338 U. S. 25; Mapp v. Ohio, 367 U. S. 643; Korematsu v. United States, 323 U. S. 214; Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495; Ker v. California, 374 U. S. 23.) III. The affidavit on which the search warrant was based was sufficient in statement to establish probable cause. (United States v. Ventresca, 380 U. S. 102; People v. Misuraco, 16 N Y 2d 542; United States v. Freeman, 358 F. 2d 459; United States v. Bowling, 351 F. 2d 236; United States v. McCormick, 309 F. 2d 367; United States v. Juvelis, 194 F. Supp. 745; Williams v. United States, 308 F. 2d 326; United States v. Li Fat Tong, 152 F. 2d 650; United States v. Romero, 249 F. 2d 371; United States v. Comi, 336 F. 2d 856.) IV. The refusal to require that the informant’s identity be revealed at the suppression hearing was not error, and, in any event, appellant’s objection to the hearing procedure has no operative significance on this appeal and is academic, since the hearing was unwarranted. Since the hearing had no proper office to perform, it should not have been held, and it is immaterial whether the court conducted it properly. (People v. Solimine, 18 N Y 2d 477; United States v. Gianaris, 25 F. R. D. 194; United States v. Doe, 19 F. R. D. 1; Kenney v. United States, 157 F. 2d 442; United States v. Brunett, 53 F. 2d 219; People v. Rivera, 41 Misc 2d 934, 22 A D 2d 853; People v. Ward, 32 Misc 2d 843; People v. Catrambone, 41 Misc 2d 282; People v. Maiorello, 31 Misc 2d 981; Nardone v. United States, 308 U. S. 338; People v. McCall, 17 N Y 2d 152; People v. Malinsky, 15 N Y 2d 86; People v. Smyth, 3 N Y 2d 184.) V. The court did not err in its conduct of the hearing. (People v. Alfinito, 16 N Y 2d 181; People v. Entrialgo, 19 A D 2d 509, 14 N Y 2d 733; People v. Lombardi, 18 A D 2d 177, 13 N Y 2d 1014; United States v. Goodwin, 1 F. 2d 36; People v. Merz, 20 A D 2d 918; United States v. Boscarino, 21 F. 2d 575; Chin Kay v. United States, 311 F. 2d 317; Batten v. United States, 188 F. 2d 75; Wilson v. United States, 218 F. 2d 754; United States v. Okawa, 26 F. R. D. 384; United States v. Warrington, 17 F. R. D. 25; United States v. Napela, 28 F. 2d 898.)
   Vast Voorhis, J.

The defendant has been convicted of possessing, with intent to sell, obscene, lewd and lascivious motion picture films in violation of section 1141 (subd. 1) of the Penal Law. A warrant was issued authorizing the search of his premises upon the affidavit of a police officer reciting that he had knowledge that information was given to the commanding officer of the vice squad by an FBI agent that defendant was engaged in the production of pornographic motion picture films, that he was advised by Lieutenant Leary of the State Police that a State Police investigation established that defendant possessed master reels needed to produce copies, and that telephone conversations concerning films were intercepted. Upon execution of the search warrant, reels of film were found in the defendant’s home. After a hearing, defendant’s motion to suppress under section 813-c of the Code of Criminal Procedure was denied.

Justice Shapiro dissented from the Appellate Term affirmance upon the ground that the description of the property to be seized under the search warrant was general, vague and conclusory and, therefore, did not meet the constitutional test requiring specific description, and that thus the police were permitted to form and impose their own individual standards of judgment concerning whether the material was within the constitutionally protected area of freedom of speech and expression.

The search warrant, in terms, authorized a search on appellant’s premises for and a seizure of “ obscene, indecent and hard core pornographic ’ pictures, photographs and motion picture films ’ ’. This language does not save the warrant from the fate that befell the search warrant in People v. Matherson (16 N Y 2d 509) which purported to authorize a search for “indecent books and material.” It is not in compliance with the requirement of the Fourth Amendment to the United States Constitution that the warrant shall “particularly” describe the “ persons or things to be seized.” The basic defect is that the language of the warrant delegates to the police officer executing it the function of determining whether the material is obscene. One of the most serious problems in the enforcement of section 1141 of the Penal Law, and similar statutes throughout the country, has been that the confines of what is permitted as free speech under the First Amendment to the United States Constitution cannot be left to the determination of police chiefs and patrolmen everywhere. The United States Supreme Court has ruled that the application of the First Amendment presents a matter of constitutional law, and numerous books, films and pictures have been considered by the Supreme Court to determine whether they are obscene. It would simplify the administration of the law if that whole function could be delegated to the discretion of law enforcement officers in the locality involved, but if that were done there would be as many different standards of what constitutes obscenity as there are policemen. It is acknowledged to be difficult even for the Supreme Court to draw the line on whether a book or picture is obscene (Jacobellis v. Ohio, 378 U. S. 184, 187), but the power and duty of making that determination is conferred upon the courts rather than upon the police (Marcus v. Search Warrant, 367 U. S. 717, 722).

In urging an affirmance of the judgment of conviction, the People are aware of this difficulty and sought to distinguish the Matherson case upon the ground that its phraseology £ £ indecent books and material ” is more vague than ££ hard core pornography ” (People v. Richmond County News, 9 N Y 2d 578). The specifying of ££ hard core pornography ” is. not enough to define specifically in a search warrant what the police are to look for and seize.

The judgment of conviction should be reversed and a new trial ordered by reason of the incorrect denial of the motion to suppress the articles seized under the search warrant (Code Crim. Pro., § 813-c), and the order denying said motion should be reversed and the motion granted.

Burke, J.

(dissenting). We would affirm the defendant’s conviction, based upon his plea of guilty, for violation of section 1141 of the Penal Law. As we view the circumstances of this case, there was no defect in the search warrant based upon specificity of the items to be seized.

Specificity,” as that term is used in cases such as this, has no hard and fast meaning, but rather must be construed as that which is reasonable under the circumstances of each case. In the present case of these films, for example, unlike cases involving books, writing materials, etc., we do not think we could reasonably demand any greater degree of specificity than that which was used in this search warrant issued by a Judge upon probable cause. Because of the affidavit of a police officer which recited: (1) that the FBI had information that the defendant was engaged in the production of pornographic motion picture films; (2) that a Lieutenant Leary of the State Police had advised the affiant that a police investigation established the same, and (3) that lawfully intercepted telephone conversations corroborated the same, the issuing Magistrate properly authorized a search of defendant’s premises and a seizure of obscene, indecent and £ hard core pornographic ’ pictures, photographs and motion picture films ’ ’„ Upon execution of the valid warrant* the police apparently searched the premises and confiscated the very films which they had probable cause to believe defendant had in his possession. This is different from walking into a bookstore and confiscating all the owner’s stock, or sitting down in such an establishment, perusing certain reading material and determining whether it is obscene or not, or, for that matter, sitting for a few hours viewing motion pictures to determine whether or not they appeal to one’s prurient interest.

Consequently, we disagree with the majority opinion when it states that ‘ ‘ The basic defect is that the language of the warrant delegates to the police officer executing it the function of determining whether the material is obscene.” There is no indication here that any such determination was made by the police officers upon execution of this warrant or that the warrant could reasonably be read as authorizing or directing them to make such a determination. To do so the officers, instead of simply seizing the film cans as they did, and as the warrant directed, would have had to set up a film projector or other viewing apparatus and examine the film frame by frame before seizing any of it. Such a procedure could not constitutionally be authorized and, of course, was not authorized under this warrant. The sole function of the officers executing this warrant was, as far as we can determine, that of confiscating for evidentiary purposes the films they found in defendant’s possession.

It is unreasonable to suggest that these concededly pornographic films could have been more accurately specified in either the affidavit or the warrant, as opposed to books and the like which are normally given titles, serial numbers, etc., and which in this day and age are a matter of public record. We must apply a standard of reasonableness in these cases, and in this respect we adopt the views of Mr. Justice Goldberg in United States v. Ventresca (380 U. S. 102 [1965]) wherein he stated: “If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” (380 U. S., supra, p. 108; italics supplied.) (See United States v. Freeman, 358 F. 2d 459 [2d Cir., 1966].) Neither Stanford v. Texas (379 U. S. 476 [1965]) nor Marcus v. Search Warrant (367 U. S. 717 [1961]) dictate a contrary result in this ease.

In Stanford, the invalidated warrant had authorized the police to search the defendant’s home and confiscate all “ books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas ”. (379 U. S., supra, pp. 478-479.) That such authorization was incredibly broad and sweeping is manifest, and this is all the more borne out by the actual evidence which was confiscated: “ The books and pamphlets taken comprised approximately 300 separate titles, in addition to numerous issues of several different periodicals. Among the books taken were works by such diverse writers as Karl Marx, Jean Paul Sartre, Theodore Draper, Fidel Castro, Earl Browder, Pope John XXIII, and Me. Justice Hugo L. Black. The officers also took possession of many of the petitioner’s private documents and papers, including his marriage certificate, his insurance policies, his household bills and receipts, and files of his personal correspondence.” (379 U. S., supra, pp. 479-480.) It is abuses such as existed in Stanford that we must attempt to combat, but neither the broadness of the warrant nor the indiscriminate confiscation which existed in that case are present in the one before us now on appeal.

In Marcus, the police had applied for a search warrant with a list of allegedly offensive material (ten titles), nine of which they knew (because they had purchased copies) the defendants sold at their six establishments. Six warrants were issued authorizing seizure of obscene materials. As to such seizure there was no limitation to the magazines on the police list, and the officers executing the warrants seized all magazines which in their judgment were obscene. When an officer thought a magazine ought to be picked up, he seized all copies of it. Execution of such warrants amounted not only to a general search of the many thousands of titles in defendant’s stocks, but also constituted a prior restraint on any publication that the police determined in their search to confiscate (11,000 copies of 280 titles).

We have illustrated that such circumstances do not exist here. The search was directed at pornographic films the police knew or had probable cause to believe defendant had in his possession, the warrant was issued by a Magistrate upon such probable cause and specified the offensive films in the only manner possible, and upon execution only such offensive films were confiscated. Under all these circustances, the warrant was as specific as could reasonably be required, and to reverse here would evidence the ‘ ‘ grudging or negative attitude by reviewing courts towards warrants ” warned against by Mr. Justice Goldberg in Ventresca (supra).

Accordingly we would affirm.

Chief Judge Fuld and Judges Bergan and Breitel concur with Judge Van Voorhis; Judge Burke dissents and votes to affirm in an opinion in which Judges Scileppi and Keating concur.

Judgment reversed and a new trial ordered.  