HELLER V. NEW YORK, 413 U. S. 483 (1973)

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U.S. Supreme Court

Heller v. New York, 413 U.S. 483 (1973)

Heller v. New York

No. 71-1043

Argued November 14, 1972

Decided June 25, 1973

413 U.S. 483


Petitioner was manager of a movie theater where a sexually explicit film was exhibited. After police officers saw part of the film, an assistant district attorney requested a New York Criminal Court judge to view it. Upon seeing the entire performance, the judge signed warrants for seizure of the film and for petitioner's arrest on the ground that the film was obscene. Exhibition of an obscene film violates New York Penal Law § 235.05. No pretrial motion was made for return of the single film copy seized or for its suppression as evidence. There was no showing below that the seizure prevented exhibition of the film by use of another copy, and the record does not indicate whether another copy was available. Petitioner's trial was held 47 days after his arrest and the film seizure, and he was convicted. He argued that seizure of the film without a prior adversary hearing violated the Fourteenth Amendment. He also challenged his conviction on substantive grounds, arguing that he was convicted under standards of obscenity both overbroad and unconstitutionally vague, and that films shown only to consenting adults in private are constitutionally protected. The New York Court of Appeals affirmed his conviction, holding that an adversary hearing prior to seizure of the film was not required and that an ex parte warrant, issued after a judicial determination of obscenity, was constitutionally sufficient.


1. Where a film is seized for the bona fide purpose of preserving it as evidence in a criminal proceeding, and it is seized pursuant to a warrant issued after a determination of probable obscenity by a neutral magistrate, and following the seizure a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible. On a showing to the trial court that other copies of the film are not available for exhibition, the court should permit the seized film to be copied so that exhibition can be continued pending judicial resolution of the obscenity issue in an adversary proceeding. Otherwise, the film must be returned.

Page 413 U. S. 484

With such safeguards, a pre-seizure adversary hearing is not mandated by the First Amendment. Pp. 413 U. S. 488-493.

2. The case is remanded to afford the state courts an opportunity to reconsider petitioner's substantive challenges in light of Miller v. California, ante, p. 413 U. S. 15, and Paris Adult Theatre I v. Slaton, ante, p. 413 U. S. 49, which establish guidelines for the lawful state regulation of obscene material. P. 413 U. S. 494.

29 N.Y.2d 319, 277 N.E.2d 651, vacated and remanded.

BURGER, C.J.,delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 413 U. S. 494. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 413 U. S. 494.

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