                                              Filed:   August 24, 1998

                     UNITED STATES COURT OF APPEALS

                         FOR THE FOURTH CIRCUIT


                             No. 97-2206(L)
                             (CA-89-2231-B)



Larry C. Hicks, etc., et al,

                                               Plaintiffs - Appellees,

            versus


Joseph I. Cassilly, etc., et al,
                                              Defendants - Appellants.


                               O R D E R



    The court amends its opinion filed July 27, 1998, as follows:

    On page 11, first paragraph, line 3 -- the following footnote
is added:

    4 The district court also denied summary judgment to Mary
    Teresa Garland, an Assistant State’s Attorney in
    Cassilly’s office. Garland did not participate in
    obtaining the search warrants, and there is no evidence
    suggesting that she had any role in Cassilly’s decision
    to file a civil complaint after the warrants were
    executed. Accordingly, the district court is also
    instructed to enter summary judgment for Garland on
    qualified immunity grounds.

                                           For the Court



                                           /s/ Patricia S. Connor
                                                    Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY C. HICKS, Director-Trustee
for 3011 Corporation; L. R. NEWS,
INCORPORATED, t/a Edgewood Books,
Plaintiffs-Appellees,

and

3011 CORPORATION, t/a US Books;
JOSEPH J. LAVODIE; PATRICIA A.
FULTON; PAUL EDWARD KOENIG;
PATRICIA ANN MCGINNIS;
WILLIAM L. PALMER, JR.; WILLIAM
ENSOR; EDWARD E. CAGE,
Plaintiffs,

v.

JOSEPH I. CASSILLY, Individually and
                                       No. 97-2206
as States Attorney, Harford County,
Maryland; M. TERESA GARLAND,
Individually and as Assistant States
Attorney, Harford County,
Maryland,
Defendants-Appellants,

and

ROBERT COMES, in his official
capacity as Sheriff for Harford
County; DOMINIC J. MELE,
Individually; JESSE BANE; J. R.
TAYLOR; THOMAS GOLDING; ROY
MITCHELL; MICHAEL BARLOW; FRED
SHERRON; JAMES STONESIFER;
JAMES M. HARKINS; EDWARD
HOPKINS; EDWARD KECK; JAMES
WAY, Individually and as Deputy
Sheriffs, Harford County, Maryland;
JOHN KUTZ; AL HAMLETT, in their
official capacities only as members
of the Federal Bureau of
Investigation, Bel Air Field Office;
BOB JONES, in his official capacity
only as U.S. Postal Inspector; JOHN
PHILIP, INCORPORATED; RAYMOND
ASTOR,
Defendants.

LARRY C. HICKS, Director-Trustee
for 3011 Corporation; L. R. NEWS,
INCORPORATED, t/a Edgewood Books,
Plaintiffs-Appellees,

and

3011 CORPORATION, t/a US Books;
JOSEPH J. LAVODIE; PATRICIA A.
FULTON; PAUL EDWARD KOENIG;
PATRICIA ANN MCGINNIS;
                                       No. 97-2219
WILLIAM L. PALMER, JR.; WILLIAM
ENSOR; EDWARD E. CAGE,
Plaintiffs,

v.

J. R. TAYLOR, Individually and as
Deputy Sheriff, Harford County,
Maryland,
Defendant-Appellant,

and

                  2
JOSEPH I. CASSILLY, Individually and
as States Attorney, Harford County,
Maryland; M. TERESA GARLAND,
Individually and as Assistant States
Attorney, Harford County,
Maryland; ROBERT COMES, in his
official capacity as Sheriff for
Harford County; DOMINIC J. MELE,
Individually; JESSE BANE; THOMAS
GOLDING; ROY MITCHELL; MICHAEL
BARLOW; FRED SHERRON; JAMES
STONESIFER; JAMES M. HARKINS;
EDWARD HOPKINS; EDWARD KECK;
JAMES WAY, Individually and as
Deputy Sheriffs, Harford County,
Maryland; JOHN KUTZ; AL HAMLETT,
in their official capacities only as
members of the Federal Bureau of
Investigation, Bel Air Field Office;
BOB JONES, in his official capacity
only as U.S. Postal Inspector; JOHN
PHILIP, INCORPORATED; RAYMOND
ASTOR,
Defendants.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Walter E. Black, Jr., Senior District Judge.
(CA-89-2231-B)

Argued: May 7, 1998

Decided: July 27, 1998

Before MICHAEL and MOTZ, Circuit Judges, and
FRIEDMAN, United States District Judge for the
 5130 35 7 Eastern District of Virginia, sitting by designation.

                   3
Reversed and remanded with instructions by unpublished per curiam
opinion.

_________________________________________________________________

COUNSEL

ARGUED: Andrew Howard Baida, Assistant Attorney General, Bal-
timore, Maryland; Jefferson Lee Blomquist, Deputy County Attorney,
DEPARTMENT OF LAW, Bel Air, Maryland, for Appellants. Wil-
liam Edward Seekford, Towson, Maryland, for Appellees. ON
BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Balti-
more, Maryland, for Appellants Cassilly and Garland.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The plaintiffs, two adult bookstores and their owners and employ-
ees (collectively, Hicks1), sued under 42 U.S.C. § 1983 because of
allegedly unconstitutional searches of the premises of the bookstores.
The searches resulted in the seizure of a large quantity of allegedly
obscene materials. The searches were conducted pursuant to warrants
obtained by Deputy Sheriff J. R. Taylor. The applications for the war-
rants were reviewed by Harford County (Maryland) State's Attorney,
Joseph Cassilly. Hicks alleges that Taylor and Cassilly violated the
United States Constitution by obtaining the warrants without first
requesting a pre-seizure adversarial hearing. Taylor and Cassilly
argue that they are entitled to qualified immunity because it was not
clearly established of the time of the searches that a seizure of alleg-
_________________________________________________________________
1 We refer to all of the plaintiffs as "Hicks" to simplify our writing.
Hicks is actually plaintiff Larry C. Hicks, the Director-Trustee for 3011
Corp. (t/a US Books), whose charter has been revoked.

                    4
edly obscene materials as evidence in a criminal case required a pre-
seizure adversarial hearing. The district court denied qualified immu-
nity to Taylor and Cassilly on the ground that the warrants violated
the constitutional requirement for a pre-seizure hearing. We find that
Taylor and Cassilly did not violate clearly established law in applying
for warrants to seize allegedly obscene material without a pre-seizure
hearing. We therefore reverse the order of the district court and
remand with instructions that Taylor and Cassilly be granted sum-
mary judgment on the grounds of qualified immunity.

I.

Early in 1989 the State's Attorney's Office of Harford County,
Maryland, began an investigation of two adult bookstores located
within the county, US Books and Edgewood Books. The State's
Attorney, Joseph Cassilly, believed that these bookstores were dis-
playing sexually explicit materials in violation of Md. Ann. Code art.
27, § 416D. That statute bans the display for advertising purposes of
"any . . . visual representation or image of a person or portion of a
human body that depicts sadomasochistic abuse, sexual conduct or
sexual excitement, or any verbal description or narrative account of
these activities or items." The Maryland Court of Appeals has inter-
preted this provision to incorporate the principles of the United States
Supreme Court's obscenity jurisprudence. See Smiley v. State, 450
A.2d 909 (Md. 1982). Violation of § 416D is a criminal offense, pun-
ishable as a misdemeanor.

As part of this investigation, Deputy Sheriff Taylor visited both
bookstores, noted how the materials were displayed, and purchased
two magazines at each store. On the basis of this investigation, Taylor
drafted affidavits to support applications for search warrants for the
bookstores. Taylor submitted these to Cassilly, and upon receiving
Cassilly's approval, filed the applications and supporting affidavits
with a state judge on June 9, 1989.

Taylor's affidavit regarding the search warrant for US Books
opened by reciting the statutory requirements of§ 416D, the criminal
provision. It then described with specificity the building where the
book store was located. Finally, the affidavit went into extensive and
explicit detail about the depictions on the front and back covers of the

                    5
two magazines Taylor had bought (entitled "She-Male Superstar" and
"She-Male In Control"). Photostatic copies of the covers of these
magazines were attached to the affidavit. Similar references and rep-
resentations were made in the affidavit supporting the application for
a warrant for Edgewood Books. Based on these affidavits, Judge
Cypert Whitfill issued warrants authorizing the authorities to "seize
and remove all books, magazines, photographs, films, poster[s], and
other items or materials that are displayed for advertising purposes
which depict sadomasochistic abuse, sexual conduct, and sexual
excitement." The judge indicated in the warrants that he was "satisfied
that there is probable cause to believe" that such items were illegally
displayed. There was no prior adversary hearing before the warrants
were issued.

On June 13, 1989, these search warrants were served on the two
bookstores. Some 1,130 magazines and other materials were seized
from US Books, and 765 items were seized from Edgewood Books.
On July 18 Cassilly filed a civil complaint in state court against the
bookstores and sought a hearing to determine whether the bookstores
possessed obscene materials. The complaint asked that the materials,
if found to be obscene, be enjoined from dissemination, confiscated,
and destroyed pursuant to Md. Ann. Code art. 27,§ 418A. This com-
plaint was dropped before a determination of obscenity was made. In
1990 Cassilly filed criminal charges under § 416D against the book-
stores and their employees. Those criminal charges resulted in either
acquittals or reversals on appeal.

Hicks filed this § 1983 action against several law enforcement offi-
cers or officials involved in the June 13, 1989, seizure, including Cas-
silly and Taylor. This suit included allegations that Cassilly and
Taylor violated the Constitution by applying for search warrants to
seize material from the bookstores without a pre-seizure hearing. The
defendants moved for summary judgment based on qualified immu-
nity. The district court granted qualified immunity to several of the
defendants but denied it as to Cassilly and Taylor on the ground that
the applications for the search warrants violated clearly established
law that a mass seizure of allegedly obscene materials must be pre-
ceded by an adversary hearing. Cassilly and Taylor appeal.

                    6
II.

In order to overcome a claim of qualified immunity, a plaintiff
must show that it was clearly established at the time of the alleged
violation that the defendant's actions were unconstitutional. See
Wilson v. Layne, 141 F.3d 111, 114 (4th Cir. 1998) (en banc). We
therefore focus our inquiry on the state of the applicable law in June
of 1989.

A.

"[T]he general rule under the Fourth Amendment is that any and
all contraband, instrumentalities, and evidence of crimes may be
seized under probable cause." Fort Wayne Books, Inc. v. Indiana, 489
U.S. 46, 63 (1989). The rule is different for the seizure of allegedly
obscene material, however. While obscene material enjoys no First
Amendment protection, until an obscenity determination is made, tar-
geted material is presumed to be protected by the First Amendment.
Applying the general rule to the seizure of allegedly obscene material
would therefore be an unconstitutional prior restraint on (presump-
tively) protected expressive material. Accordingly, the Supreme Court
has established "rigorous procedural safeguards[that] must be
employed before expressive materials can be seized as `obscene.'"
See id. at 62 (citing Marcus v. Search Warrant, 367 U.S. 717 (1961)).
In order to satisfy these safeguards, a warrant for the mass seizure of
allegedly obscene material with the purpose of taking that material
out of circulation or preventing its display may not issue without a
prior adversarial hearing. See Quantity of Books v. Kansas, 378 U.S.
205, 210 (1964).2

On the other hand, the Supreme Court has recognized that this right
to a pre-seizure adversarial hearing is not absolute. In Heller v. New
York, 413 U.S. 483 (1973), police officers obtained a warrant for the
seizure of an allegedly obscene movie based on a criminal anti-
obscenity statute. This seizure was intended to preserve the film as
evidence in the criminal trial that followed. The Court refused to
_________________________________________________________________
2 Hicks does not dispute that if this special rule were not in the picture,
the warrants were supported by and could have been issued on probable
cause.

                    7
invalidate the seizure despite the defendant's claims that he was enti-
tled to a pre-seizure adversarial hearing. The Court found that seizing
an allegedly obscene work "for the bona fide purpose of preserving
it as evidence in a criminal trial" does not contain the same danger
of prior restraint as a seizure with intent to destroy that material. Id.
at 492. Accordingly, the Court concluded that the seizure of allegedly
obscene material to preserve it as evidence in a criminal proceeding
does not require a pre-seizure adversary hearing. See id. at 490; see
also New York v. P.J. Video, Inc., 475 U.S. 868, 873 (1986); Fort
Wayne Books, 489 U.S. at 63 ("[A] single copy of a book or film may
be seized and retained for evidentiary purposes based on a finding of
probable cause").

Therefore, the law was clearly established in June 1989 to this
extent: a seizure of allegedly obscene materials for the purpose of
destroying or halting their distribution required a pre-seizure adver-
sarial hearing, while the same seizure for the purpose of preserving
evidence for a subsequent criminal trial did not require such a hear-
ing. We therefore examine Hicks's allegations against both Cassilly
and Taylor against this established principle.

B.

In this case the record reveals that State's Attorney Cassilly
launched his investigation to find evidence of violations of § 416D,
a criminal statute. In an affidavit supporting his motion for summary
judgment, Cassilly indicated that "the sole objective of the State's
Attorney's office [in authorizing the search] was to obtain evidence
of criminal violations of Art. 27, § 416D." Cassilly also testified in his
deposition that the whole purpose of the seizure under the search war-
rants was to obtain evidence for use at a criminal trial. See, e.g., J.A.
479 (noting that the search warrant was focused to look for "viola-
tions of § 416(d) [sic]"). Cassilly indicated that he "didn't have a
problem" with Hicks selling the pornographic material, but Cassilly
simply intended to stop its display in a manner that violated the crimi-
nal statute. This testimony is uncontradicted in the record.

Hicks points to only one matter which he claims supports an infer-
ence that Cassilly applied for the warrants with the intent to destroy
the materials. Hicks highlights the fact that one month after the June

                     8
13 search of the bookstores, Cassilly filed a civil complaint for
injunctive relief under Md. Ann. Code art. 27, § 418A, which, if
granted, would have led to the destruction of any materials found to
be obscene. Hicks argues that complaint should be read to infer an
intent by Cassilly to use the search warrant as a tool to seize allegedly
obscene material from the bookstores in order to destroy it later. We
disagree.

The complaint does not make clear whether its target includes the
material seized under the search warrants on June 13, 1989, as Hicks
suggests it does, or whether it is directed solely at other material
which Hicks allegedly continued to display after the seizure. Since we
are bound to construe the facts in favor of Hicks (the non-movant),
we will assume that the material seized on June 13 is targeted by the
complaint, even though Cassilly vigorously disputes this charge. The
complaint also, however, asks the state court to"Order [Hicks] to
Show Cause why the requested injunction should not be granted and
the matters seized and destroyed." This indicates Cassilly's intent to
submit to a pre-seizure adversarial hearing on all material to be seized
and destroyed under the complaint.3 Even assuming that the com-
plaint covered those items already seized on June 13, those items
could not have been destroyed pursuant to the complaint before a
hearing was conducted. We cannot reasonably infer from these facts
that Cassilly used the search warrants as a ruse to evade a pre-seizure
adversarial hearing, only to ask for just such a hearing in his civil
complaint filed a month later. Rather, the complaint can only be read
to indicate that Cassilly intended to obey the constitutional rule
requiring an adversarial hearing before the allegedly obscene material
could be seized and destroyed under the civil case. Finally, Cassilly
did not switch exclusively to a civil proceeding (where a pre-seizure
hearing was required) after some materials were seized under the
criminal warrants. He eventually followed up on the warrants with
criminal prosecutions.

Hicks has failed to produce any material evidence that the search
warrants were intended for any purpose other than to preserve evi-
dence for a criminal trial. Hicks's attempt to establish a connection
_________________________________________________________________
3 The hearing was never held, and Cassilly later voluntarily dismissed
the complaint.

                     9
between the search warrants and the civil complaint is simply "too
remote and too tenuous to create a genuine issue of material fact."
Ennis v. Nat'l Assoc. of Bus. and Educ. Radio, Inc. , 53 F.3d 55, 62
(4th Cir. 1995). Cassilly therefore did not violate clearly established
law in reviewing and approving the search warrant applications. The
district court's denial of qualified immunity for Cassilly must there-
fore be reversed.

C.

The evidence with regard to Deputy Sheriff Taylor even more
clearly indicates that he is entitled to qualified immunity. The only
evidence in the record concerning Taylor's motive in seeking the
search warrants is his supporting affidavits for the warrants. Those
affidavits clearly indicate that the searches were intended to gather
evidence relating to violations of § 416D, a criminal statute. Their
reliance on the state criminal obscenity statute makes the affidavits
virtually indistinguishable from the warrant upheld by the Supreme
Court in Heller, 413 U.S. at 485. There is no mention of the civil stat-
ute which permits material to be destroyed, nor is there any indication
that Taylor intended to seize the evidence for any reason except to
obtain evidence of a possible criminal violation. Furthermore, Hicks
does not present any evidence suggesting that Taylor was involved in
or even knew about Cassilly's decision to file a civil complaint a
month after the search warrants were executed. While Hicks is enti-
tled to reasonable inferences, he is not entitled to mere suppositions
unsupported by the record. See Ennis, 53 F.3d at 62. Here, the uncon-
tradicted evidence in the record demonstrates that Taylor obtained
and executed the search warrants solely for the purpose of obtaining
evidence in a criminal case. We therefore find that he did not violate
clearly established law in obtaining the warrants. Accordingly, the
district court erred in failing to grant summary judgment to Taylor on
qualified immunity grounds.

III.

We conclude that Cassilly and Taylor did not violate clearly estab-
lished law by obtaining search warrants (without a pre-seizure adver-
sarial hearing) in order to seize allegedly obscene materials from
Hicks as evidence for a criminal prosecution. We therefore reverse

                    10
the judgment of the district court and remand with instructions that
summary judgment be granted to Cassilly and Taylor on the grounds
of qualified immunity.4

REVERSED AND REMANDED WITH INSTRUCTIONS

                    11




_______________________________________________________

4 The district court also denied summary judgment to Mary Teresa
Garland, an Assistant State’s Attorney in Cassilly’s office. Garland
did not participate in obtaining the search warrants, and there is
no evidence suggesting that she had any role in Cassilly’s decision
to file a civil complaint after the warrants were executed. Accord-
ingly, the district court is also instructed to enter summary judg-
ment for Garland on qualified immunity grounds.
