Stanley V. Georgia - Stewart Concurrence

Stewart Concurrence

Justice Stewart wrote a concurrence, which Justice Brennan and Justice White joined.

There was also another issue with the Constitutionality of the case, which was not addressed in the majority decision. The films were seized in violation of the Fourth Amendment as applied to the states by the Fourteenth. The Fourth Amendment prohibits the issuance of general warrants to search a person’s home. A warrant can only be issued by a judge when there is probable cause. The particular items to be found must be enumerated on the warrant. The search warrant issued was for the seizure of materials in Stanley's home relating to bookmaking. There was no mention of obscene films on the warrant, and so the seizure of the films as evidence was unconstitutional.

General searches and seizures were made unconstitutional because of the prevailing policy during colonial rule of issuing writs of assistance of the British Crown to search all of a person’s belongings to find anything that is incriminating.

The films and their content were not in “plain view”. The record showed that the officers had to play the films on a projector to determine that they violated the Georgia obscenity statute. So the films are not admissible as evidence under the plain view doctrine, which requires that the character of the object is “immediately apparent”.

A search warrant cannot be used as a “ticket” to enter private property. Once inside, an officer cannot assume the privileges of a general warrant.

For these reasons, the films are inadmissible as evidence. Stanley made a motion to exercise this Fourth Amendment right during his trial, and the motion was unconstitutionally denied. The Georgia Supreme Court also overlooked this Constitutional violation. The conviction must be reversed.