Marcus v. Search Warrant

Marcus v. Search Warrant
Supreme Court of the United States
Argued March 30, 1961 Decided June 19, 1961
Full case name	Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri
Docket no.	60-225
Citations	367 U.S. 717 (more) 81 S. Ct. 1708; 6 L. Ed. 2d 1127
Argument	Oral argument
Opinion announcement	Opinion announcement
Case history
Prior	Forfeiture ordered, Jackson County Circuit Court, unreported; affirmed, Missouri Supreme Court, 334 S. W. 2d 119
Holding
Where material to be seized may be protected by First Amendment, search warrant must be as specific as possible as to items to be seized; seizure itself must be limited only to items enumerated in warrant. Missouri Supreme Court reversed and remanded.
Court membership
Chief Justice Earl Warren Associate Justices Hugo Black · Felix Frankfurter William O. Douglas · Tom C. Clark John M. Harlan II · William J. Brennan Jr. Charles E. Whittaker · Potter Stewart
Case opinions
Majority	Brennan
Concurrence	Black, joined by Douglas
Laws applied
U.S. Const. Amds. I, IV and XIV

Marcus v. Search Warrant, 367 U.S. 717 (1961), full title Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri, is an in rem case decided by the United States Supreme Court on the seizure of obscene materials. The Court unanimously overturned a Missouri Supreme Court decision upholding the forfeiture of hundreds of magazines confiscated from a Kansas City wholesaler. It held that both Missouri's procedures for the seizure of allegedly obscene material and the execution of the warrant itself violated the Fourth and Fourteenth amendments' prohibitions on search and seizure without due process. Those violations, in turn, threatened the rights protected by the First Amendment.

The case had begun in 1957, when the Kansas City Police Department vice squad raided the warehouse of a local news distributor and five newsstands. Officers seized dozens of publications, far beyond those which had started the investigation, since the search warrants were not specific. Less than half of the seized titles were ultimately found obscene and ordered to be burnt.

Justice William Brennan wrote for the Court. He found the officers' conduct similar to that which had inspired the Founding Fathers to write the Fourth Amendment. He added that the Missouri Supreme Court had incorrectly applied an earlier Court holding in sustaining the forfeiture. The result was a system that operated as an effective prior restraint. Hugo Black, in a concurring opinion, joined by William O. Douglas restated his conviction that the Fourteenth Amendment applies all the rights protected by the Constitution to the states.

Marcus broke ground in holding that First Amendment interests required an additional layer of procedure than other instances of seizure. It would figure prominently in later obscenity cases involving seizures, including one called Quantity of Books v. Kansas, that explicitly tried to take its holding into account. After the Court settled on a definition of obscenity in the early 1970s, it continued to hear other cases on the issues first addressed in Marcus.