542.281. Obscene matter, search warrant, procedure for obtaining--application for warrant, content--adversary hearing required, when--alteration of material after notice of hearing or execution of war - Missouri Statutes

Obscene matter, search warrant, procedure for obtaining--applicationfor warrant, content--adversary hearing required, when--alteration ofmaterial after notice of hearing or execution of warrant prohibited.

542.281. 1. Any police officer, sheriff or deputy sheriffmay make application for the issuance of a search warrant tosearch for and seize:

(1) Obscene matter being held or displayed for sale,exhibition, distribution, or circulation to the public;

(2) Matter that is pornographic for minors being held ordisplayed for sale, exhibition, distribution, or circulation tominors;

(3) Property which has been used by the owner, or used withhis consent, as a raw material or as an instrument to publish orproduce such matter as described in subdivisions (1) and (2) ofthis subsection.

2. A warrant to search for and seize the matters andproperty described in subsection 1 of this section as evidence ina criminal proceeding pursuant to chapter 573, RSMo, may beissued by a judge of the circuit court in the county or judicialdistrict in which the alleged matter or property is located.Except as provided in this section, the issuance of a warrant tosearch for and seize obscene matter shall be governed by theprovisions of section 542.276. Notwithstanding subsection 3 ofsection 542.276, oral testimony may be considered.

3. The application and the warrant, if issued, shalldesignate precisely by title, or otherwise, each item to besearched for and seized.

4. No warrant shall be issued to search for and seize anyitem unless the judge determines there is probable cause tobelieve that such item is obscene as defined in section 573.010,RSMo, and is being displayed, sold, exhibited, distributed, orcirculated to the public or is pornographic for minors as definedin section 573.010, RSMo, and is being displayed, sold,exhibited, distributed or circulated to minors.

5. If the item to be seized is a book, magazine, paper, orpamphlet or an item that may be photographed, a copy orphotograph of the allegedly obscene item may be annexed to theapplication.

6. If the item to be seized is a motion picture film orvideo cassette, written affidavits verified by oath oraffirmation of law enforcement officers and city or countyprosecutors may supplement the application.

7. An officer in making his application for a warrant mayrely on past viewings of a motion picture film or video cassettethat is the same as the motion picture film or video cassette tobe seized if the film or video cassette to be seized can beidentified as the same as or a copy of, the prior viewed film orvideo cassette by the title of the film or video cassette or thepackage or label on or surrounding the film or video cassette orsome other manner.

8. If the purpose of applying for a warrant is to search forand seize obscene material for other than evidentiary purposes,the judge shall hold an adversary hearing to determine whethersuch matter is obscene before issuing a warrant. Not less thantwenty-four hours before such hearing, written notice of thedate, time, place and nature of the hearing, including adescription of the matter sought, shall be personally served uponthe dealer, exhibitor, displayer or his agent. No warrant shallbe issued without the dealer, distributor, or displayer beinggiven a reasonable opportunity to appear in opposition to theissuance. If the material to be seized is the same as or anothercopy of matter that has already been determined to be obscene ina criminal proceeding against the dealer, exhibitor, displayer orhis agent, the determination of obscenity in the criminalproceeding shall constitute clear and convincing evidence thatthe matter to be seized pursuant to this subsection is obscene.Except when the dealer, exhibitor, or displayer consents to alonger period, or by his actions or pleadings, willfully preventsthe prompt resolution of the hearing, a decision shall berendered no later than ten days from the date of the commencementof the hearing. After service of notice of the hearing, orsubpoena, or the execution of a search warrant, intentionalalteration, destruction, or removal of any matter, or duplicateof matter, described in the notice shall be punished as contemptof court.

(L. 1974 S.B. 366 § 5, A.L. 1987 H.B. 113, et al.)

Effective 7-15-87

(1998) Statute not constitutionally required to provide a one-copy limitation. B.A.P., Inc. v. McCulloch, 994 F.Supp. 1131 (E.D.Mo.).

(1999) Section is not unconstitutional for vagueness in failing to distinguish between mass seizures and limited evidentiary seizures. B.A.P., Inc. v. McCulloch, 170 F.3d 804 (8th Cir.).