                       United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 __________

                                 No. 98-1753EM
                                 _____________

B.A.P., Inc.,                          *
                                       *
                Appellant,             *
                                       *
                                       *
      v.                               *   On Appeal from the United
                                       *   States District Court
                                       *   for the Eastern District of
Robert P. McCulloch, Prosecuting       *   Missouri.
Attorney of St. Louis County, Mo.;     *
Ronald A. Battelle, Col., Chief of     *
Police, St. Louis County Police        *
Department,                            *
                                       *
                Appellees.             *

                                  ___________

                             Submitted: November 16, 1998
                                Filed: February 26, 1999
                                 ___________

Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and DAWSON,1 District
      Judge.               ___________

RICHARD S. ARNOLD, Circuit Judge.

      1
       The Hon. Robert T. Dawson, United States District Judge for the Western
District of Arkansas, sitting by designation.
       B.A.P., Inc., filed this complaint for declaratory judgment and injunction to
determine whether a Missouri statute which sets out the procedure for obtaining
search warrants for obscene material is unconstitutional on its face or as applied. The
District Court2 found that the failure of the Missouri statute to include the procedural
safeguards urged by B.A.P. did not render the statute unconstitutional, and that the
statute as applied to B.A.P. conformed to all relevant constitutional standards.
B.A.P., Inc. v. McCulloch, 994 F. Supp. 1131 (E.D. Mo. 1998). We affirm.

                                           I.

      The St. Louis County Police Department began investigating B.A.P., Inc., for
suspected violations of the Missouri obscenity statutes3 in the late spring of 1997.


      2
       The Hon. Stephen N. Limbaugh, United States District Judge for the Eastern
District of Missouri.
      3
       Mo. Rev. Stat. § 573.010(8) provides the following definition of obscenity:

      [A]ny material or performance is obscene if:

      (a) Applying contemporary community standards, its predominant
      appeal is to prurient interest in sex; and

      (b) Taken as a whole with the average person, applying contemporary
            community standards, it depicts or describes sexual conduct in a
      patently offensive way; and

      (c) Taken as a whole, it lacks serious literary, artistic, political or
      scientific value.

     Mo. Rev. Stat. § 573.030 provides that “A person commits the crime of
promoting . . . obscenity in the second degree if, knowing its content or character, he:

       (1) Promotes or possesses with the purpose to promote any obscene material

                                          -2-
Over several occasions, undercover officers purchased a total of eight videos and
three magazines from a business operated by B.A.P. known as California Erotic
Novelties located in an unincorporated area of St. Louis County. After watching the
videos and looking through the magazines, the officers consulted with the St. Louis
County Prosecuting Attorney’s Office and decided to apply for a search warrant under
Mo. Rev. Stat. § 542.281.4 The application for the search warrant, the accompanying


for pecuniary gain . . ..”

      4
       Mo. Rev. Stat. § 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. 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, RSMo, 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. . . .

      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, RSMo, and is being displayed,
      sold, exhibited, distributed, or circulated to the public . . ..

                                        ***

                                         -3-
affidavit of the investigating officer, Detective Ostendorf, and the warrant itself, all
state that “[o]bscene material in violation of RSMo. 573.030 is being kept and/or
displayed upon the premises” of California Erotic Novelties. Each of these
documents contains identical lengthy definitions of “obscene” based on the definition
used in the Missouri statute. At the conclusion of these definitions the documents
state, “said video cassettes and magazines are proscribed by Section 573.030 RSMo
. . . as follows: [at this point the titles of the various materials are listed].” Each
document then continues, “and all other items contained in and on the premises . . .
that depicts [sic] sexual conduct as follows . . ..” The definition of obscene used
above is then substantially repeated.

       Ostendorf’s affidavit contains a brief description of several of the videos
detailing the nature of the sexual conduct depicted, and recounts statements made to
her during her undercover visit to California Erotic Novelties by its employees that
the videos were rated “XXX” and were “hard-core pornography.” Ostendorf also
attached photocopies of the video box covers and front covers of the magazines to her
affidavit. Ostendorf and a representative of the Prosecuting Attorney’s Office then
presented the application and affidavit to Circuit Judge O’Toole, who examined the
materials, briefly questioned Ostendorf, and then issued the warrant. Prior to the
execution of the warrant, members of the St. Louis County Police Department, after
consultation with the St. Louis County Prosecuting Attorney’s Office, met in order
to discuss the criteria for seizure under the warrant. During the course of this
meeting, a “three-pronged test” was referred to and was later used by the officers
conducting the search. Under this test, the material had to 1) be “XXX-rated;” 2)
have genitalia displayed on the covers or within the material seized; and 3) have


       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. . . .


                                          -4-
sexual acts portrayed in a “non-literary or artistic manner.”

       Using this guideline, the officers conducted a search of California Erotic
Novelties on September 16, 1997, that lasted approximately ten hours and resulted
in the seizure of 4189 videos and 2118 magazines. On October 20, 1997, the State
of Missouri, St. Louis County, filed an eleven count information against B.A.P. and
three of its employees for promoting obscenity in the second degree. Counts One
through Eight and Count Eleven arose from various undercover sales in May, July,
and August of 1997; Counts Nine and Ten were based on a video and magazine
seized during the execution of the search warrant.

        On October 23, 1997, the District Court held a hearing on the preliminary
injunction. Peter Pigman, an employee of B.A.P. who was on duty at California
Erotic Novelties at the time of the search, testified that after the search was
completed, the store was virtually cleaned out of merchandise (Tr. 24). Pigman also
testified that approximately seventeen previously unopened boxes full of videos were
seized, as well as multiple copies of many videos and magazines. Detective
Ostendorf confirmed during her testimony that she seized several boxes of previously
unopened videos after opening the boxes and examining the titles (Tr. 93), and also
testified that, to her knowledge, the search warrant gave her the authority to seize
multiple copies of videos and magazines (Tr. 98). As to the manner in which the
material was seized, Ostendorf stated:

      With the magazines, I personally seized all of those, so how I did it is:
      I didn’t open the magazines and read them. All I did is anything on the
      front cover that either showed a sex act in a graphic nature, in an
      offensive nature type, or it showed genitalia in a non-artistic form, was
      seized.


(Tr. 119.) Ostendorf further testified that the same basic procedure was followed for


                                         -5-
the seizure of the videos, that is, the decision on whether to seize was made after a
brief perusal of the pictures on the box.

      The attorney for B.A.P. then questioned Robert P. McCulloch, Prosecuting
Attorney of St. Louis County, about whether it would be necessary to introduce
anything other than the actual videos sold to the undercover officers in order to
prosecute the misdemeanor counts. McCulloch explained that the charge of
promotion of obscenity requires the State to prove that the defendant knew the
character and content of the material, and that the other tapes might be needed to
show that knowledge. In addition, McCulloch speculated that the other tapes could
potentially form the basis of additional charges. The following exchange then
ensued:

      Q:     You are not telling the Court that it was necessary for the police
      to go in and seize every video in the store in order to prove these eight
      misdemeanor counts. That isn’t your testimony today, is it?

      A:     There are ten counts there, 10 or 11.

      Q:     Let’s just deal with the first eight.

      A:    Well, with the first eight, they deal with dates preceding the
      execution of the search warrant -- I am sorry, the first nine I believe do,
      maybe the first eight -- deal with dates preceding the search warrant.

            However, our evidence, and I’m not prepared to try the case right
      now, but essentially our evidence would show that this conduct was
      continuing at least from the first time the officers went in in May
      throughout the entire summer.

             I think that evidence is admissible for the purposes that I stated
      earlier, to show that the individuals involved in the sale were aware of
      the nature and character and content of the material that they were
      issuing or that they were promoting, and other charges may result from

                                          -6-
      the items that were seized.

             In fact, other charges did result from the items that were seized on
      the 15th of September, when the warrant was executed.[5] There may be
      additional charges.

      Q:     Let me ask you this question: Are you holding for evidence to be
      used in Counts 1 through 8, which deal with offenses that took place
      [other] than on May the 15th of 1997 and August the 18th, are you
      holding as evidence these four – over 4,000 videos that were seized on
      September the 16th?

      A:     Not solely for that purpose, but yes.

      Q:     Not solely for that purpose?

      A:     Correct.

(Tr. 145-47.)

                                           II.

       B.A.P. claims that the statute which authorized the warrant, Mo. Rev. Stat.
§ 542.281, is facially unconstitutional on three grounds, and each will be addressed
in turn.6




      5
      Counts Nine and Ten resulted from items seized on the day of the search,
which was actually September 16, 1997.
      6
        As noted, B.A.P.’s initial action, filed on September 25, 1997, prior to the
filing of the information, challenged the constitutionality of the statute as written and
as applied. In this appeal, B.A.P. limits its arguments to the facial validity of the
statute only.

                                          -7-
                                           A.

       B.A.P. first argues that the statute is unconstitutional because it fails to
distinguish adequately between “mass seizures” and “limited evidentiary seizures.”
As noted above, the Missouri statute sets out two different procedural paths for the
seizure of obscene materials, depending on the purpose of the seizure. Under Mo.
Rev. Stat. § 542.281.8, if the warrant is for “other than for evidentiary purposes” then
the statute requires written notice and an adversarial hearing to determine the issue
of obscenity before the judge may issue the warrant. The problem with this scheme,
B.A.P. insists, is that there is nothing in the language of the statute itself to prevent
an overzealous prosecutor from conducting a mass seizure without providing the
required procedural safeguards by simply disguising it as an evidentiary seizure. As
B.A.P. correctly points out, the Constitution requires additional procedural safeguards
when obscene material is seized as contraband in a forfeiture proceeding, as opposed
to when it is seized as evidence of a crime, in this case a misdemeanor violation,
promotion of obscenity in the second degree.7 According to B.A.P., the Prosecuting
Attorney’s Office and the St. Louis County Police Department essentially conducted
a raid on California Erotic Novelties and seized most of its inventory in an attempt
to force it out of business. B.A.P. argues that McCulloch’s testimony, the fact that
the seizure practically depleted the entire inventory of California Erotic Novelties,
and the cursory fashion in which the officers determined what items would be seized,
all indicate that the seizure was not just to gather evidence, but also to restrain the
free flow of presumptively protected material. Furthermore, B.A.P. claims that this
mischief was a result of an infirmity in the statute. As B.A.P. sees it, in order to pass
constitutional scrutiny the statute must provide some constraint on the authority of

      7
       In Marcus v. Search Warrant of Property at 104 East Tenth St., Kansas City,
367 U.S. 717 (1961), and A Quantity of Copies of Books v. Kansas, 378 U.S. 205
(1964), the Court held that a prior judicial determination of obscenity was required
before any large-scale seizure of materials for the purpose of their destruction as
contraband. Marcus, 367 U.S. at 731-32; A Quantity of Books, 378 U.S. at 210.

                                          -8-
the issuing judge not to exceed the limited scope of permissible evidentiary seizures,
or must require a neutral, detached magistrate to make the determination as to what
type of seizure the State is seeking.

       We disagree. The District Court found that it was “undisputed that the
expressed purpose for the issuance of the subject warrant was to seize obscene
materials for evidentiary purposes,” and we may not set aside this finding unless it
is clearly erroneous.8 In any event, B.A.P. asks too much. Its argument, in essence,
is that we should invalidate the statute for failing to prohibit potential abuses by
prosecutors who use, or misuse, procedures provided for in the statute. This is not
the way to address such misconduct. No statute can absolutely eliminate all
possibility of abuse in its administration, and the statute before us does clearly
distinguish between seizures for evidentiary purposes and other seizures. It is true
that in the area of First Amendment rights, the Supreme Court has permitted
overboard regulations of speech to be invalidated on their face because of “a judicial
prediction or assumption that the statute’s very existence may cause others not before
the court to refrain from constitutionally protected speech or expression.” Members
of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789, 799 (1984) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)).
However, there must be “a realistic danger that the statute itself will significantly
compromise recognized First Amendment protections . . ..” Id. at 801. No such
danger exists in this case. As B.A.P. itself points out, the danger is overzealous
prosecution, not a defect in the statute. If such misconduct does occur, the aggrieved


      8
        B.A.P. insisted in both its written and oral arguments before this Court that
McCulloch’s testimony clearly indicates that the State was not motivated solely to
gather evidence. In support of this view, B.A.P. cited the final portion of the above
quoted exchange during the hearing. However, when read in context, we do not think
the admission is so clear. McCulloch had already stated that the other videos might
result in additional charges, and that the State might need to introduce evidence of
defendant’s knowledge or intent.

                                         -9-
party who diligently pursues its rights has a variety of protections. Among other
things, a bookseller may go to court and secure the return of all multiple copies (all
copies beyond a single copy of each item). That in fact happened here: the District
Court ordered all multiple copies returned, and defendants have complied.

                                          B.

       B.A.P. next argues that the statute is invalid even if the seizure was purely for
evidentiary purposes, because it fails to provide a procedural avenue for requesting
a prompt, post-seizure adversarial hearing to determine whether the materials seized
are obscene. B.A.P. claims that without such a device it is suspended in
“jurisdictional purgatory” until the initiation of a criminal proceeding (which occurs
at the discretion of the prosecutors any time before the statute of limitations runs on
the offense), at which time it could seek return of its property by motion in the
criminal case. B.A.P. argues that in the meantime it has no procedural recourse.

       Again, we disagree. It is true that the Constitution requires that a prompt
hearing be available to B.A.P., but the burden is on B.A.P. to request such a hearing
– something it never did. Heller v. New York, 413 U.S. 483, 490-91 (1973); Supreme
Video, Inc. v. Schauz, 15 F.3d 1435, 1443 (7th Cir. 1994). B.A.P.’s argument that
it had no procedural avenue by which to request such a hearing is unconvincing, since
it never made the attempt. A constitutional right does not need enabling legislation
to provide for its enforcement, Merrell v. All Seasons Resorts, Inc., 720 F. Supp. 815,
818 (C.D. Cal. 1989), and we refuse to invalidate a statute for its lack of a particular
safeguard when the party making the request was never denied relief. B.A.P. could
have moved the judge who issued the warrant to provide an adversary hearing on the
issue of obscenity, and we are not willing to assume that the judge would not have
held such a hearing.




                                         -10-
                                           C.

       B.A.P.’s final claim is that the statute is unconstitutional because it permits the
seizure of multiple copies of allegedly obscene material. B.A.P. insists that this
deficiency allows materials to be taken completely out of circulation before a judicial
determination on the issue of obscenity. The State argues there is no requirement that
every warrant limit evidentiary seizures to only one copy of every item, and that, in
any event, such a limitation is not a necessary component of the search and seizure
statute. The District Court, after conducting a thorough review of the Supreme Court
cases in this area, concluded that the statute’s failure expressly to include such a
limitation did not render it unconstitutional. The Court did, however, recognize at the
close of its order that since “there is some evidence that multiple copies of videos and
magazines were seized . . . [i]f the plaintiff can identify the multiple copies taken,
and requests their return, the defendants shall return the multiple copies seized. If a
single copy was seized, and if the plaintiff can so identify it and requests its return,
the defendants shall make a copy of the video so that the video is available for
viewing pending an obscenity determination.”9 994 F. Supp. at 1146. As we have
noted above, this relief was later obtained by B.A.P.

       In Heller v. New York, 413 U.S. 483 (1973), the manager of a movie theater
who had been found guilty of promoting obscenity appealed the denial of his motion
to dismiss the indictment on the ground that the seizure of the film, which formed the


      9
        In a separate section of the District Court’s opinion the Court acknowledged
that both Pigman and Detective Ostendorf had testified that multiple copies were
seized. But neither was able to identify any specific video or magazine of which
multiple copies were taken. And, because there was no evidence that all copies of
any particular video or magazine were seized, the Court found that B.A.P. had failed
to carry its burden of showing that the failure of the warrant to have a “one copy”
limitation constituted an impermissible prior restraint. Id. at 1145; see also New York
v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986).

                                          -11-
basis of the conviction, violated the Constitution because it was not preceded by an
adversary hearing on the issue of probable obscenity. The Court rejected this
argument, holding that “there is no such absolute right where allegedly obscene
material is seized, pursuant to a warrant, to preserve the material as evidence in a
criminal prosecution.” Id. at 488. Using language that B.A.P. now relies on heavily,
the Court then differentiated between the types of seizures at issue in Marcus and A
Quantity of Books, which did require a pre-seizure hearing, and the one which Heller
complained of, noting that a seizure for the purpose of destroying the materials or
blocking their distribution is a “very different matter from seizing a single copy of a
film for the bona fide purpose of preserving it as evidence in a criminal proceeding,
particularly where, as here, there is no showing or pretrial claim that the seizure of the
copy prevented continuing exhibition of the film.” Id. at 492 (emphasis supplied).
The Court’s reasoning, it seems to us, is based on several factors, none of which
necessarily compels a “one copy” limit on all future evidentiary seizures. First, there
had already been a determination of probable cause by a neutral magistrate; second,
the State of New York stood ready to provide a prompt post-seizure hearing; and
third, the Court mandated that if there were a showing that other copies of the film
were not available, “the court should permit the seized film to be copied so that
showing can be continued pending a judicial determination of the obscenity issue in
an adversary proceeding. Otherwise, the film must be returned.” Id. at 492-93
(footnote omitted). In its discussion, the Court also included a footnote which stated
in part:

      This is not to say that multiple copies of a single film may be seized as
      purely cumulative evidence, or that a State may circumvent Marcus or
      A Quantity of Books by incorporating, as an element of a criminal
      offense, the number of copies of the obscene materials involved.


Id. at 492 n.8.



                                          -12-
      In Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989), the Court restated
the holding in Heller, using somewhat broader language:

      [In Heller,] we concluded that until there was a “judicial determination
      of the obscenity issue in an adversary proceeding,” exhibition of a film
      could not be restrained by seizing all the available copies of it. The
      same is obviously true for books or any other expressive materials.
      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 adversary hearing.



Id. at 63 (quoting Heller, 413 U.S. at 492-93).

      The Seventh Circuit relied on the above cited passages to hold:

      Supreme Court decisions clearly set forth when police may seize movies
      without a prior determination of whether the films are obscene. First, a
      police officer may seize single copies of films (meaning if a store had
      three Rocky II movies on its shelf, the police may seize only one) for the
      purpose of preserving them as evidence in a criminal proceeding so long
      as the seizure is based on probable cause.


Supreme Video, Inc. v. Schauz, 15 F.3d 1435, 1442 (7th Cir. 1994). We need not
decide in this case whether it is always unconstitutional to seize more than one copy
for evidentiary purposes. The focus of this case is on the facial validity of the
Missouri statute, not, as in Supreme Video, the actual conduct of the officers in
executing the warrant. If there is a one-copy limitation, it may be enforced by suit
against the officers. The limitation does not have to appear on the face of the statute.
Indeed, in this very case the District Court ordered the return of all multiple copies,
and there is no proof that sale of any particular item was ever completely restrained

                                         -13-
because all copies of the item had been seized.

      The judgment is affirmed.

      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                       -14-
