Multi-Media Distributing Co., Inc. v. US

836 F. Supp. 606

MULTI-MEDIA DISTRIBUTING CO., INC., a/k/a Leisure Time Entertainment, Inc., d/b/a Leisure Time Products, Inc., Plaintiff, v. UNITED STATES of America, for Defendant.

Civ. No. H 93-196.

United States District Court, N.D. Indiana, Hammond Division.

October 28, 1993.

COPYRIGHT MATERIAL OMITTED

David J. Hensel, Indianapolis, IN, Herald Fahringer and Diarmuid White, New York City, Arthur Schwartz, Denver, CO, for plaintiff.

Terry M. Cushing, Asst. U.S. Atty., Louisville, KY, Elizabeth L. Homer, Washington, DC, for defendant.

ORDER

MOODY, District Judge.

This matter comes before the court upon the motion of Multi-Media Distributing Co. hereinafter "Multi-Media" for return of property under Rule 41(e) of the Federal Rules of Criminal Procedure. On May 13, 1993, the United States executed a search warrant at Multi-Media's Merrillville, Indiana facility. Among the items seized at that time were two copies each of eighty-six allegedly obscene video cassettes and nine allegedly obscene magazines. A partial copy of Multi-Media's customer list was also seized. Multi-Media argues that these seizures violated its rights under the Fourth and First Amendments to the United States Constitution. The court disagrees that Multi-Media's Fourth Amendment rights have been violated, but is sensitive to the First Amendment rights implicated by the seizure in this case. Accordingly, Multi-Media's motion for an immediate return of its property is DENIED; a hearing is ordered for December 13, 1993 to determine the obscenity of the seized materials pursuant to Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973).

I. Background.

On May 10, 1993, United States Postal Inspector Gary Kinney applied for a warrant to search Multi-Media's Merrillville, Indiana facility and to seize various items, including the magazines and video cassettes at issue here. In his affidavit in support of his application, Kinney stated that, in February, 1993, he interviewed two Kentucky residents who had received unwanted advertisements from Multi-Media via the U.S. Mail. The advertisements promoted graphically sexual magazines and video cassettes that the residents found objectionable.

Both Kentuckians asked that the advertisements no longer be delivered to their homes. Meanwhile, Kinney initiated an investigation of Multi-Media. The materials sent by Multi-Media, which bore the name "Leisure Concepts" or "Leisure Time Products", included business reply envelopes and order forms. Kinney, utilizing a pseudonym, used these forms on several occasions to order sexually explicit materials. After reviewing the magazines and video cassettes he received from these orders, Kinney concluded that probable cause existed that Multi-Media was violating 18 U.S.C. § 1461, which prohibits mailing obscene matter.¹

Kinney applied for, and received, a warrant to search Multi-Media's Merrillville, Indiana facility. His affidavit describes the advertisements for, and his observations of, the thirteen video cassettes he had ordered. It also describes his observations of the nine magazines he had ordered. Two of the video cassettes were themselves "Video Catalogues," which consisted of scenes from seventy-nine other video cassettes that could be ordered from Multi-Media.

On the basis of Kinney's affidavit, the Magistrate Judge issued a search warrant that authorized the seizure of:

• two additional copies of each of the thirteen video cassettes described in Kinney's affidavit,

• two additional copies of each of the nine magazines described in Kinney's affidavit,

• two copies of each of the video cassette titles depicted in the "Video Catalogues,"

• business records, which might include a copy of Multi-Media's customer list.

The video cassettes and magazines were all identified by title.

The warrant was executed on May 13, 1993. Postal inspectors seized two copies each of eighty-six video cassettes and two copies of all nine of the magazines. They also seized a copy of Multi-Media's customer list for the area encompassing the western judicial district of Kentucky.

To date, Multi-Media has not been indicted in connection with these materials. As stated, Multi-Media has brought this action to secure the materials' return utilizing FED. R.CRIM.P. 41(e).

II. Jurisdiction.

This case presents a relatively rare procedural animal and the court first reviews the fact and form of its jurisdiction over Multi-Media's motion. Rule 41(e) states as follows:

A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person in entitled to lawful possession of the property.

Rule 41(e), although a rule of criminal procedure, has been held to support an independent equitable action for return of property even in the absence of any criminal proceeding. See, e.g., In re Search of Kitty's East, 905 F.2d 1367, 1370 (10th Cir.1990) ("Entertaining a preindictment Rule 41(e) motion is an exercise of equitable jurisdiction...."); White Fabricating Co. v. United States, 903 F.2d 404, 407-08 (6th Cir.1990) (Refusing to adopt "per se" rule, but acknowledging that "assumption of equitable jurisdiction is warranted under equitable standards in this particular case."); Pieper v. United States, 604 F.2d 1131, 1133 (8th Cir.1979) ("The District Court's equitable jurisdiction to suppress illegally obtained evidence before an indictment has been issued has been firmly established.") The court thus treats Multi-Media's motion as a civil action invoking the court's equitable powers.

This jurisdiction must be exercised with "caution and restraint." In re Search of Kitty's East, 905 F.2d at 1370; White Fabricating Co., 903 F.2d at 408. Prudence is required because preindictment orders to return property inevitably involve the court in the prosecutorial process, since an order to return seized evidence may strip the prosecution of its only basis for going to the grand jury. That caution notwithstanding, this case, involving the seizure of materials presumptively protected by the First Amendment, see Maryland v. Macon, 472 U.S. 463, 468, 105 S.Ct. 2778, 2781, 86 L.Ed.2d 370 (1985); United States v. Levinson, 991 F.2d 508, 509-10 (9th Cir.1993), commands that jurisdiction be exercised, see In re Search of Kitty's East, 905 F.2d at 1371.

III. The Fourth Amendment Claims.

Multi-Media argues that the seizure of the video cassettes, magazines, and customer list was unlawful under the Fourth Amendment to the United States Constitution.² The Fourth Amendment protects the people from "unreasonable searches and seizures" and provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation...." U.S. CONST. amend IV. Multi-Media argues that Kinney's affidavit was insufficient to provide the Magistrate Judge with probable cause that it was violating 18 U.S.C. § 1461.

"An application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally." New York v. P.J. Video, 475 U.S. 868, 875, 106 S.Ct. 1610, 1615, 89 L.Ed.2d 871 (1986). Thus, the Magistrate Judge's task is "`simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that ... evidence of a crime will be found in a particular place.'" Id. at 876, 106 S.Ct. at 1615 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). Review of a Magistrate Judge's probable cause determination is limited to whether he or she had a "substantial basis" to find as he or she did. Id. The Fourth Amendment question before the court, therefore, is whether Kinney's affidavit provided a substantial basis from which the Magistrate Judge could find probable cause that obscene material was being knowingly sent by Multi-Media from Merrillville via the United States mail. A critical element of that conclusion was whether the affidavit provided a substantial basis to find probable cause that the listed video cassettes and magazines were obscene materials.

It is horn-book law that "a warrant authorizing the seizure of materials presumptively protected by the First Amendment may not issue based solely on the conclusory allegations of a police officer that the sought-after materials are obscene." See P.J. Video, 475 U.S. at 874, 106 S.Ct. at 1614. Rather, supporting affidavits must set forth sufficient facts to allow the Magistrate Judge to "`focus searchingly on the question of obscenity'" Id. (citation omitted). The answer to the question of obscenity, in turn, must be found with reference to the following questions:

(a) whether the "average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently descriptive way, sexual conduct ..., (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973).³

Multi-Media challenges the basis for the Magistrate Judge's probable cause determination concerning the obscenity question on the grounds that: (1) the Magistrate Judge did not himself view the thirteen video cassettes attached to the affidavit⁴; (2) Kinney's descriptions of those thirteen video cassettes were insufficient; and, (3) Kinney's affidavit does not describe the other seventy-nine video cassettes listed in the warrant, i.e. the titles lifted from the video catalogs.

The first of these arguments is easily disposed of: a Magistrate Judge need not personally view allegedly obscene material prior to issuing a warrant authorizing its...