UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-40160
JOE WALLACE, doing business as Video Liquidators
Plaintiff-Appellant
VERSUS
MICHAEL E. WELLBORN, ET AL.
Defendants
LISA SHEPPARD, Department of Public Safety Agent, DANNY
CONTRERAS, Department of Public Safety Agent
Defendants-Appellees
Appeals from the United States District Court
for the Southern District of Texas
February 8, 2000
Before KING, Chief Judge, and DUHÉ and DeMOSS, Circuit Judges.
DUHÉ, Circuit Judge:
Joe Wallace (“Wallace”), doing business as Video Liquidators,
appeals the district court's order granting summary judgment based
on qualified immunity to Department of Public Safety (“DPS”) Agents
Lisa Sheppard (“Sheppard”) and Danny Contreras (“Contreras”). We
affirm.
I. BACKGROUND
Based on public complaints, Sheppard and Contreras began a
criminal investigation of four adult video stores in Portland,
Texas. Contreras purchased several allegedly obscene videos from
Wallace's store. Sheppard reviewed these videos and concluded that
they met the statutory definition of obscenity.
Thereafter, Sheppard, with the assistance of her supervisor,
drafted and presented affidavits for search and seizure warrants of
the four video stores to the Patricio County Court. She also
drafted the search and seizure warrants. The judge reviewed and
signed a warrant authorizing the agents to search all four stores.
The warrant also authorized the agents to seize all material found
to be in violation of Texas Penal Code § 43.21 et seq., which
outlaws the promotion of obscenity, and Texas Business and Commerce
Code § 35.94(a), which outlaws the sale of videotapes that do not
clearly display the name of the manufacturer on the package cover.
The DPS and other law enforcement agencies served the warrants
on the four stores. Sheppard and Contreras searched Video
Liquidators and seized 2,134 videotapes, 42 magazines, 75 eight-
millimeter movie reels, two birthday cards, and 17 toys as
evidence. The agents seized multiple copies of the same videos,
and they confined the search to the back of the store where the
sexually-orientated material was displayed. They also arrested
Wallace for violating Texas Penal Code § 43.21. Before the
seizure, no judicial hearing to review the videos' content was
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convened. The government tried Wallace twice for violating Texas
obscenity law. A jury did not reach a verdict in Wallace's first
trial, and, in a second trial, a jury acquitted him. After the
verdict the government returned the remainder of Wallace's
property.
Wallace sued under 42 U.S.C. § 1983 for damages against
Contreras and Sheppard. Wallace contends the agents unlawfully
seized the videos from his store without a prior adversarial
judicial proceeding. The agents successfully moved for summary
judgment based on qualified immunity. The district court denied
Wallace's motion for summary judgment.
II. DISCUSSION
We review a summary judgment de novo. Wallace v. Texas Tech
Univ., 80 F.3d 1042, 1046 (5th Cir. 1996). To establish that the
agents are not entitled to summary judgment based on qualified
immunity, Wallace must satisfy a three-part test. First, the
plaintiff must allege the deprivation of a constitutional right.
Second, we must determine whether this right was clearly
established at the time of the alleged violation. Finally, we must
determine whether the record at least gives rise to a genuine issue
of material fact as to whether the defendants actually engaged in
the conduct that violated this clearly established right. Kipps v.
Caillier, 197 F.3d 765, 768 (5th Cir. 1999) (internal citations
omitted).
The general rule under the Fourth Amendment is that any and
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all contraband, instrumentalities, and evidence of crimes may be
seized based on probable cause. Fort Wayne Books, Inc. v. Indiana,
489 U.S. 46, 62-63 (1989). However when First Amendment rights are
implicated, courts must apply “rigorous procedural safeguards . .
. before expressive materials can be seized as 'obscene.'” Id.
(citing Marcus v. Search Warrant, 367 U.S. 717, 732 (1961)).
Therefore, procedural safeguards, including a prior judicial
adversarial proceeding, are usually required in a civil context.
A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 210 (1964).
The Supreme Court has held that there is no absolute right to
a prior adversarial hearing in cases where allegedly obscene
material is seized to preserve evidence in a criminal prosecution.
Heller v. New York, 413 U.S. 483, 488 (1973); United States v.
Echols, 577 F.2d 308, 310 (5th Cir. 1978). After the seizure, a
defendant may request a prompt judicial determination of the
obscenity issue if the seizure was completed without a prior
judicial hearing. Heller, 413 U.S. at 492 n.8.
Based on Heller, the district court concluded that the record
demonstrated that the agents obtained and executed the warrant for
the sole purpose of obtaining and preserving evidence for Wallace's
criminal prosecution. The district court held that Wallace had no
clearly established constitutional right to a prior adversarial
hearing, and the agents were entitled to qualified immunity.
Wallace argues that this case is different than Heller because
that case involved the seizure of one film rather than the seizure
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of more than 2000 videotapes, many of them duplicative. Even
though this case is distinguishable from Heller on the facts,
Wallace still does not enjoy a clear constitutional right to a
prior judicial hearing. First, neither Heller nor Fort Wayne Books
states affirmatively that seizing multiple copies of an item
without a prior judicial proceeding is unconstitutional. Heller,
413 U.S. at 492 n.8 (questioning the need to seize multiple copies
of a film as purely cumulative evidence); Fort Wayne Books, 489
U.S. at 63, quoting Heller, 413 U.S. at 492 (“While a single copy
of a book or film may be seized and retained for evidentiary
purposes based on a finding of probable cause, the publication may
not be taken out of circulation completely until there has been a
determination of obscenity after an adversarial hearing.”).
Second, Contreras stated in an affidavit that it was necessary to
seize the large quantity of evidence because each item was under
Texas law illegal contraband. See also Hicks v. Cassilly, 97-2206,
97-2219, 1998 WL 433299 (4th Cir. July 27, 1998) (unpublished
opinion) (holding that an officer was entitled to qualified
immunity where more than 1,000 items were seized from an adult
bookstore to preserve evidence in a criminal case without a prior
adversarial hearing).
Therefore, Appellant has not shown a clearly established right
to a pre-seizure hearing.
AFFIRMED.
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