Roaden v. Kentucky, 413 U.S. 496 (1973)

CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY

Syllabus

A county sheriff viewed a sexually explicit film at a local drive-in theater. At the conclusion of the showing, he arrested petitioner, the theater manager, for exhibiting an obscene film in violation of Kentucky law, and seized, without a warrant, one copy of the film for use as evidence. There was no prior judicial determination of obscenity. Petitioner’s motion to suppress the film as evidence on the ground of illegal seizure was denied, and he was convicted. The Kentucky Court of Appeals affirmed, holding that the concededly obscene film was properly seized incident to a lawful arrest.

Held: The seizure by the sheriff, without the authority of a constitutionally sufficient warrant, was unreasonable under Fourth and Fourteenth Amendment standards. The seizure is not unreasonable simply because it would have been easy to secure a warrant, but rather because prior restraint of the right of expression, whether by books or films, calls for a higher hurdle in the evaluation of reasonableness. Lee Art Theatre v. Virginia, 392 U.S. 636; Marcus v. Search Warrant, 367 U.S. 717. This case does not present an exigent circumstance in which police action must be "now or never" to preserve the evidence of the crime, and where it may be reasonable to permit action without prior judicial approval. Pp. 501-506.

473 S.W.2d 814, reversed and remanded.

BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment in which STEWART and MARSHALL, JJ., joined, post, p. 507. DOUGLAS, J., filed a dissenting opinion, ante, p. 494.