Maryland v. Macon
Decided on June 17, 1985; 472 US 463


A. Issues Discussed: Obscenity and Search and Seizure

B. Legal Question Presented:

Does the purchase of allegedly obscene matter by an undercover police officer constitute a seizure under the Fourth Amendment?


A. Background:

"On May 6, 1981, three Prince George's County police detectives went to the Silver News, Inc., an adult bookstore in Hyattsville, Maryland, as part of a police investigation of adult bookstores in the area. One of the detectives, who was not in uniform, entered the store, browsed for several minutes, and purchased two magazines from a clerk, Baxter Macon, with a marked $50 bill. The detective left the store and showed the two magazines to his fellow officers who were waiting nearby. Together they concluded that the magazines were obscene under the criteria previously used by them in warrant applications. The detectives returned to the store, arrested respondent Macon, who was the only attendant in the store, and retrieved from the cash register the $50 bill that had been used to make the purchase. The officers neglected to return the change received at the time of the purchase. Respondent escorted the remaining customers out and closed the bookstore before leaving with the detectives.

Prior to trial, Macon moved to suppress the magazines purchased by the officers and the $50 bill used to make the purchase. [T]he trial judge denied the motion on the grounds that the purchase was not a seizure within the meaning of the Fourth Amendment and that the warrantless arrest was lawful. The magazines, but not the $50 bill, were subsequently introduced in evidence at trial. The jury found respondent guilty of distributing obscene materials. Respondent appealed, contending that a prior judicial determination of probable cause to believe the matter distributed was obscene was required to sustain a seizure and an arrest on charges related to obscenity. Absent such a determination, respondent argued, the allegedly obscene materials must be suppressed and the charges must be dismissed. Respondent did not challenge the jury's finding that the magazines were obscene.

The Maryland Court of Special Appeals agreed that a warrant is required both to seize allegedly obscene materials and to arrest the distributor in order to provide a procedural safeguard for the First Amendment freedom of expression. In cases involving First Amendment rights, the court reasoned, Fourth Amendment safeguards, including suppression of material acquired in connection with a warrantless arrest, must be applied more stringently. The court determined that the purchase of the magazines was a 'constructive' seizure and that the proper remedy was to exclude the magazines from evidence at the subsequent trial. Alternatively, the court held that the warrantless arrest of respondent on obscenity charges required the exclusion of the publications from evidence. The court accordingly reversed the conviction and ordered that the charges be dismissed because without the magazines the evidence was insufficient to sustain a conviction."

On certoirari the US Supreme Court reversed the judgment of the Maryland Court of Appeals.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Burton W. Sandler argued the cause for respondent. With him on the brief was Joseph L. Gibson.

Brief of amici curiae urging affirmance by American Booksellers Association, Inc., et al. by Michael A. Bamberger and Shirley Adelson Siegel; and for the American Civil Liberties Union by Burt Neuborne.

Deborah K. Chasanow argued the cause for petitioner. With her on the briefs were Stephen H. Sachs, Attorney General of Maryland, and Anne E. Singleton, Assistant Attorney General.

Brief of amici curiae urging affirmance by reversal by the United States by Solicitor General Lee, Assistant Attorney General Trott, and Deputy Solicitor General Frey.


"The First Amendment imposes special constraints on searches for and seizures of presumptively protected material and requires that the Fourth Amendment be applied with 'scrupulous exactitude' in such circumstances. Consequently, the Court has imposed particularized rules applicable to searches for and seizures of allegedly obscene films, books, and papers. Although we have not previously had an occasion to analyze the question whether a purchase of obscene material is properly classified as a seizure, some prior cases have involved seizures that followed bona fide undercover purchases. In those cases, the Court did not address the exclusion of the purchased materials, but only of the materials obtained through mass seizures conducted pursuant to unconstitutional open-ended warrants. Absent some action taken by government agents that can properly be classified as a 'search' or a 'seizure,' the Fourth Amendment rules designed to safeguard First Amendment freedoms do not apply.

A search occurs when 'an expectation of privacy that society is prepared to consider reasonable is infringed.' Here, respondent did not have any reasonable expectation of privacy in areas of the store where the public was invited to enter and to transact business. The mere expectation that the possibly illegal nature of a product will not come to the attention of the authorities, whether because a customer will not complain or because undercover officers will not transact business with the store, is not one that society is prepared to recognize as reasonable. The officer's action in entering the bookstore and examining the wares that were intentionally exposed to all who frequent the place of business did not infringe a legitimate expectation of privacy and hence did not constitute a search within the meaning of the Fourth Amendment.

Nor was the subsequent purchase a seizure within the meaning of the Fourth Amendment. A seizure occurs when 'there is some meaningful interference with an individual's possessory interests' in the property seized. Here, respondent voluntarily transferred any possessory interest he may have had in the magazines to the purchaser upon the receipt of the funds. Thereafter, whatever possessory interest the seller had was in the funds, not the magazines. At the time of the sale the officer did not 'interfere' with any interest of the seller; he took only that which was intended as a necessary part of the exchange.

The use of undercover officers is essential to the enforcement of vice laws. An undercover officer does not violate the Fourth Amendment merely by accepting an offer to do business that is freely made to the public. 'A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant.' Nor does the First Amendment suggest a different conclusion in this case. Although a police officer may not engage in a 'wholesale searc[h] and seizur[e]' in these circumstances nothing in our cases renders invalid under the Fourth Amendment or the First Amendment the purchase as here by the police of a few of a large number of magazines and other materials offered for sale. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizures of First Amendment materials, does not come into play in such cases, and the purchase is analogous to purchases of other unlawful substances previously found not to violate the Fourth Amendment.

Notwithstanding that the magazines were obtained by a purchase, respondent argues that the bona fide nature of the purchase evaporated when the officers later seized the marked $50 bill and failed to return the change. When the officer subjectively intends to retrieve the money while retaining the magazines, respondent maintains, the purchase is tantamount to a warrantless seizure. This argument cannot withstand scrutiny. Whether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' and not on the officer's actual state of mind at the time the challenged action was taken. Objectively viewed, the transaction was a sale in the ordinary course of business. The sale is not retrospectively transformed into a warrantless seizure by virtue of the officer's subjective intent to retrieve the purchase money to use as evidence. Assuming, arguendo, that the retrieval of the money incident to the arrest was wrongful, the proper remedy is restitution or suppression of the $50 bill as evidence of the purchase, not exclusion from evidence of the previously purchased magazines.

The question remains whether respondent's warrantless arrest after the purchase of the magazines requires their exclusion at trial. Again, assuming, arguendo, that the warrantless arrest was an unreasonable seizure in violation of the Fourth Amendment - a question we do not decide - it yielded nothing of evidentiary value that was not already in the lawful possession of the police. 'The exclusionary rule enjoins the Government from benefiting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality.' Here, the magazines were in police possession before the arrest, and the $50 bill, the only fruit of the arrest, was not introduced in evidence. We leave to another day the question whether the Fourth Amendment prohibits a warrantless arrest for the state law misdemeanor of distribution of obscene materials.

Because the undercover agents did not obtain possession of the allegedly obscene magazines by means of an unreasonable search or seizure and the magazines were not the fruit of an arrest, lawful or otherwise, the magazines were properly admitted in evidence at respondent's trial for distribution of obscene materials..."

The US Supreme Court reversed the judgment of the Maryland Court of Appeals.

Justice Vote: 2 Pro vs. 7 Con

  • O'Connor, S.D. Con (Wrote majority opinion)
  • Burger, W. Con (Joined majority opinion)
  • White, B. Con (Joined majority opinion)
  • Blackmun, H. Con (Joined majority opinion)
  • Powell, L. Con (Joined majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Stevens, J.P. Con (Joined majority opinion)
  • Brennan, W. Pro (Wrote dissenting opinion)
  • Marshall, T. Pro (Joined dissenting opinion)

The ACLU, as amicus curiae, urged affirmance of the Maryland Court of Appeals judgment; the Supreme Court reversed in a 2-7 vote, giving the ACLU an apparent loss.