NEW YORK STATE COURT OF APPEALS

People v. P.J. Video, Inc.

68 N.Y. 2d 296 (1986)

Simons, Judge.

In our earlier decision in this case, 65 N.Y. 2d 566, 493 N.Y.S. 2d 988, 483 N.E.2d 1120, we held that the issuing magistrate erred in approving a warrant authorizing the seizure of video cassette films as evidence that defendants are promoting obscenity. The warrants were void, we said, although supported by police affidavits itemizing several scenes of patently offensive sexual conduct, because the evidence before the magistrate did not establish probable cause to believe that the films were obscene within the three-part definition of Penal Law Section 235.00. On Certiorari review the Supreme Court of the United States found the evidence satisfied the requirements of the Fourth Amendment to the Federal Constitution and it therefore reversed our decision and remanded the case to us so that we could decide whether Article I, Section 12 of the State Constitution imposes a more exacting standard for the issuance of search warrants authorizing the seizure of allegedly obscene material than does the Federal Constitution (citation omitted). We hold that it does and we therefore affirm the order of County Court suppressing the films.

The appeal arises from proceedings instituted in the Village of Depew Justice Court charging defendants with multiple counts of obscenity in the third degree based upon their knowing possession, with the intent to promote, of allegedly obscene video cassette films (Penal Law Section 235.05(1)). 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 information. 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. 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 issued 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, we 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” (People v. P.J. Video, 65 N.Y. 2d. 566, 569-570, 493 N.Y.S. 2d. 988, 483 N.E. 2d. 1220, supra, citing Stanford v. Texas, 379 U.S. 476, 481-485, 85 S. Ct. 506, 509-512, 13 L. Ed. 2d. 431).

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The Supreme Court judged probable cause applying the totality of the circumstances/fair probability test of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d. 527. The Gates rule originally was adopted to test the reliability of anonymous informants’ tips. It overruled the established two-pronged Aguilar-Spinelli test (Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d. 723, Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637) which required a court to review both the basis of the informant’s knowledge and the reliability of his information, to permit a magistrate to now decide whether, given all the circumstances set forth in the police affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. 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 (see, New York v. P.J. Video, 475 U.S., 106 S. Ct. 1610, 1615-1616, 89 L. Ed. 2d. 871, supra (construing Gates). Having done so, it remanded the case to us 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 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 (see, e.g., Prune Yard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 2040-41, 64 L. Ed. 2d. 741, Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788, 791, 17 L. Ed. 2d. 430; see also, 1 Rotunda, Nowak and Young, Constitutional Law, Section 1.6(a); see, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977)). 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, Section 12 of the New York Constitution requiring more. We turn then to the question whether we should measure probable cause in this case by different standards under the State Constitution.

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Similarly, although asked to do so, we have not reached out to adopt the Gates “totality of the circumstances” test in warrant cases (see, 66 N.Y. 2d. at pp. 424-425, 497 N.Y.S. 2d. 630, 488 N.E. 2d. 451), and we have declined to extend it to review warrantless arrests predicated on hearsay information (see, People v. Johnson, 66 N.Y. 2d. 398, 407 N.Y.S. 2d. 618, 488 N.E. 2d. 439, supra; People v. Landy, 59 N.Y. 2d. 369, 375, 465 N.Y.S. 2d. 857, 452 N.E. 2d. 1185).

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Our decision to rely on Article I, Section 12, rather than on the Supreme Court’s Fourth Amendment pronouncement in this case, is motivated also by concerns of federalism and separation of powers (cf. Maltz, op. cit., 63 Tex. L Rev., at 1016-1023). The States exist as sovereign entities independent of the national Government and the Tenth Amendment reserves to them and the people, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States” (U.S. Const. 10th Amend.). Thus, the “structure of state governments and their sphere of operations simply are not the subjects of the Constitution, except insofar as the Constitution shifts power from the states to the national government, or protect the rights of individuals from government violations.”