An officer purchased two reels of film from the defendant’s “adult” bookstore, and upon viewing them, he concluded they violated local obscenity law. The officer took the film to a town justice who viewed both films in their entirety. The justice concluded the films were obscene. The officer applied for a search warrant and requested that the town justice accompany him to the defendant’s store for its execution. This would allow the town justice to independently see if any other items at the store were possessed in violation of the law. At the time the town justice signed the warrant, the only “things to be seized” that were described in the warrant were copies of the two films the officer had purchased. The town justice assisted in the execution of the search warrant. He viewed movies and determined which were subject to seizure. He had magazines removed from clear plastic or cellophane wrappings, reviewed them, and determined them to be subject to seizure.
Whether the magistrate was neutral and detached?
No. The magistrate’s participation in the search destroyed his ability to be neutral and detached.
By allowing himself to participate in the search, the town justice did not manifest the neutrality and detachment demanded of a judicial officer when presented with an application for a search warrant. The fact that the store invited the public to enter did not constitute consent to a wholesale search and seizure. The town justice viewed the films and magazines in a manner inconsistent with that of a customer. He did not see these items as a customer would ordinarily see them. Therefore, his involvement in the search led to the loss of his independent stature required of a judicial officer.
442 U.S. 319, 99 S. Ct. 2319 (1979)