Section 542.281

Title XXXVII CRIMINAL PROCEDURE

Chapter 542

Effective - 15 Jul 1987, see footnote   

  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 warrant prohibited. — 1.  Any police officer, sheriff or deputy sheriff may make application for the issuance of a search warrant to search 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 or displayed for sale, exhibition, distribution, or circulation to minors;

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

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

  3.  The application and the warrant, if issued, shall designate precisely by title, or otherwise, each item to be searched for and seized.

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

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

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

  7.  An officer in making his application for a warrant may rely on past viewings of a motion picture film or video cassette that is the same as the motion picture film or video cassette to be seized if the film or video cassette to be seized can be identified as the same as or a copy of, the prior viewed film or video cassette by the title of the film or video cassette or the package or label on or surrounding the film or video cassette or some other manner.

  8.  If the purpose of applying for a warrant is to search for and seize obscene material for other than evidentiary purposes, the judge shall hold an adversary hearing to determine whether such matter is obscene before issuing a warrant.  Not less than twenty-four hours before such hearing, written notice of the date, time, place and nature of the hearing, including a description of the matter sought, shall be personally served upon the dealer, exhibitor, displayer or his agent.  No warrant shall be issued without the dealer, distributor, or displayer being given a reasonable opportunity to appear in opposition to the issuance.  If the material to be seized is the same as or another copy of matter that has already been determined to be obscene in a criminal proceeding against the dealer, exhibitor, displayer or his agent, the determination of obscenity in the criminal proceeding shall constitute clear and convincing evidence that the matter to be seized pursuant to this subsection is obscene.  Except when the dealer, exhibitor, or displayer consents to a longer period, or by his actions or pleadings, willfully prevents the prompt resolution of the hearing, a decision shall be rendered no later than ten days from the date of the commencement of the hearing.  After service of notice of the hearing, or subpoena, or the execution of a search warrant, intentional alteration, destruction, or removal of any matter, or duplicate of matter, described in the notice shall be punished as contempt of court.

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(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.).