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Supreme Court judged probable cause

This criminal case arises from proceedings charging defendants with multiple counts of obscenity in the third degree based upon their knowing possession, with intent to promote, of allegedly obscene video cassette films. After arraignment, defendants moved to suppress the films contending that the warrant authorizing seizure was not based on probable cause. Justice Court granted the motion and dismissed the informations. County Court affirmed its order and a Judge of this court granted the People leave to appeal. Upon review we addressed both procedural and substantive issues.

A New York Sex Crimes attorney said that the procedural issue concerned the extent of the inquiry a magistrate must make before issuing a warrant to seize materials that may enjoy First Amendment protection. Inasmuch as the magistrate had not viewed the films nor questioned the police but rather relied solely on the police officer’s affidavit for each film, the substantive issue posed was whether the affidavits presented sufficient evidence to enable the magistrate to make an objective determination that there existed probable cause to seize the films because they constituted the fruits, instrumentalities or evidence of a crime.

Applying established law, the Court resolved the procedural issue by stating that the determination of probable cause had to be made by the magistrate, not the police that it had to be made from information submitted or available to him, and that–because the materials presumptively enjoyed First Amendment protection–the magistrate was required to perform his duty with “scrupulous exactitude”

The Court held that the magistrate was not required to view the films, or even supplement the affidavits by questioning the investigating officers. If he relied solely on affidavits, however, the allegations contained in them had to satisfy the legal standards of probable cause.

On the substantive issue, the Court noted that before a person may be found guilty of promoting obscenity the materials he promotes must be more than sexually explicit. They must be obscene under the statutory definition. That definition contains three elements: the material must not only be patently offensive but also, when considered as a whole and judged by the average person applying contemporary community standards, its predominant appeal must be to prurient sex, and it must lack serious literary, artistic, political and scientific value Acknowledging that, in this case, the magistrate had cause to believe that the films violated paragraph (b) of the statutory definition, we held that he nevertheless erred because the affidavits on which he acted contained only an itemized list of sexual acts, and the police officer’s conclusory assertion that the list represented the “content and character” of the films or that such scenes appeared “throughout” the films.

Accordingly, the Court held the magistrate did not have probable cause to support issuance of a warrant to seize the films as evidence of the crime of promoting obscenity because he had permitted the police officer to make the determination for him that the films as a whole appealed predominantly to prurient sex and lacked value.

On certiorari review, the Supreme Court judged probable cause by applying the totality of the circumstances/fair probability test provided in a case. This case originally was adopted to test the reliability of anonymous informants’ tips. In this case, the Supreme Court extended the reach of this “totality of the circumstances/fair probability” standard and applied it, for the first time, to an obscenity case to permit the magistrate to focus generally on the explicit nature of pornographic material without specifically considering the other statutory elements of the crime. Having done so, it remanded the case to the Court for our further consideration.

State courts are bound by the decisions of the Supreme Court when reviewing Federal statutes or applying the Federal Constitution. Under established principles of federalism, however, the States also have sovereign powers. When their courts interpret State statutes or the State Constitution the decisions of these criminal courts are conclusive if not violative of Federal law.

Although State courts may not circumscribe rights guaranteed by the Federal Constitution, they may interpret their own law to supplement or expand them. Thus, notwithstanding that the evidence before the magistrate was sufficient to establish probable cause under the Federal Constitution, we have the power on remand to interpret article I, § 12 of the New York Constitution as requiring more. We turn then to the question whether we should measure probable cause in this case by different standards under the State Constitution.

Criminal Courts and commentators have identified many considerations and concerns upon which a State court may rely when determining that its Constitution accords greater protection to individual liberties and rights than the protection guaranteed by the Federal Constitution. One basis for relying on the State Constitution arises from an interpretive review of its provisions. If the language of the State Constitution differs from that of its Federal counterpart, then the court may conclude that there is a basis for a different interpretation of it. Such an analysis considers whether the textual language of the State Constitution specifically recognizes rights not enumerated in the Federal Constitution; whether language in the State Constitution is sufficiently unique to support a broader interpretation of the individual right under State law; whether the history of the adoption of the text reveals an intention to make the State provision coextensive with, or broader than, the parallel Federal provision; and whether the very structure and purpose of the State Constitution serves to expressly affirm certain rights rather than merely restrain the sovereign power of the State. To contrast, noninterpretive review proceeds from a judicial perception of sound policy, justice and fundamental fairness.

The Court’s determination rests on noninterpretive grounds. We rely principally on established Federal and State law because we believe the arguments supporting that body of law are more persuasive than the arguments supporting application of the rule in this obscenity case, and are consistent with the admonition of an earlier Supreme Court that constitutional provisions for the security of persons and property are to be liberally construed.

The Court’s decision, however, is also based on principles of federalism and on New York’s long tradition of interpreting our State Constitution to protect individual rights. In this case, the Court consider two fundamental rights, the right of free expression and the right of citizens to be free from unlawful governmental intrusions.

In the past the Criminal Court have frequently applied the State Constitution, in both civil and criminal matters, to define a broader scope of protection than that accorded by the Federal Constitution in cases concerning individual rights and liberties. The Court’s conduct in the area of Fourth Amendment rights has been somewhat more restrained because the history of section 12 supports the presumption that the provision “against unlawful searches and seizures contained in NY Constitution, article I, § 12 conforms with that found in the 4th Amendment, and that this identity of language supports a policy of uniformity between State and Federal courts” Based on this, the Court have sought to fashion search and seizure rules that promote consistency in the interpretations we have given these parallel clauses. The interest of Federal-State uniformity, however, is simply one consideration to be balanced against other considerations that may argue for a different State rule. When weighed against the ability to protect fundamental constitutional rights, the practical need for uniformity can seldom be a decisive factor. Thus, notwithstanding an interest in conforming our State Constitution’s restrictions on searches and seizures to those of the Federal Constitution where desirable, this court has adopted independent standards under the State Constitution when doing so best promotes “predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens”

The decisions reflect a concern that the Fourth Amendment rules governing police conduct have been muddied, and judicial supervision of the warrant process diluted, thus heightening the danger that our citizens’ rights against unreasonable police intrusions might be violated. The Court sees the Supreme Court’s present ruling as a similar dilution of the requirements of judicial supervision in the warrant process and as a departure from prior law on the subject.

As the Criminal Court read the court’s decision, it condones a probable cause determination by a magistrate based only upon the strength of the showing of probable cause as it relates to one of several necessary elements of the crime involved. While the “totality of the circumstances/fair probability” formulation may satisfy some as an acceptable analytical framework when used to evaluate whether an informant’s tip should be credited as one element bearing on probable cause, the argument for its validity breaks down where, as here, the standard is applied in a different, nonhearsay, probable cause context.

Several years ago, the Court summarized our past decisions on the subject, restating a rigorous, fact-specific standard of review imposed upon the magistrate determining probable cause.

“The existence of probable cause is a determination solely for the Magistrate, not the affiant, and should only be made when probable cause has been demonstrated as a matter of fact in the manner prescribed by statute (CPL art. 690) and decisional law

“Therefore when the Magistrate undertakes this factual determination, he should consider all aspects of the information supporting the application. Of particular relevancy in this process is an evaluation of the sources of information and the manner in which it was acquired. The Magistrate should also consider the experience and expertise of the officers involved and the extent to which the information has been verified. Further attention should be given to the nature of the crime and the exigencies, if any, involved. In sum, the Magistrate must evaluate the search warrant application consistent with these and other considerations which evince reliability.

“Where it appears that the Magistrate has conducted such a measured and comprehensive examination into the basis for the warrant, the factual determination as to probable cause will, of itself, constitute a suitable makeweight when the warrant is challenged. By the same token, where the Magistrate merely acts as a rubber stamp the validity of the warrant will be suspect.”

Finally, it should be noted that obscenity cases differ from other crimes because, by definition, they are predicated on contemporary community standards. While fundamental First Amendment restraints on State power do not vary from community to community, “in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity”. When viewed as a whole, a challenged work may be a valueless piece of pornography, appealing only to the prurient interests, and the proof before the magistrate may establish this in the view of the reviewing Judges. But the work is not criminal obscene unless so judged when applying contemporary community standards. The parameters of the “community” whose standard is to be applied are not only non-national, but also are to be defined according to State law. Thus, New York law requires the magistrate, or the finder of fact at trial, to determine the average New Yorker’s evaluation of, and reaction to, the challenged material. This perception of “the average New Yorker ” involves a mix of factors peculiar to this State, including our legal traditions and our cultural and historical position as a leader in the educational, scientific and artistic life of our country, as well as a recognition that New York is a State where freedom of expression and criminal experimentation has not only been tolerated, but encouraged.

Criminal cases involve penalties like imprisonment. Since it involves deprivation of liberty, a diligent lawyer should protect the right of an accused. The latter is said to be innocent until proven otherwise. Here in Stephen Bilkis and Associates, our New York Defense Criminal lawyers will see to it that the rights of the accused/respondent are guarded in every stage of the proceedings. Our New York Sex Crimes attorneys on the other hand help the victims of sexually related crimes. By filing a complaint and favorable judgment, sexual abuse to women will be deterred.

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