Under a Kansas statute authorizing the seizure of allegedly obscene books before an adversary determination of their obscenity and, after that determination, their destruction by burning or otherwise, the Attorney General of Kansas obtained an order from the District Court of Geary County directing the sheriff of the county to seize and impound, pending hearing, copies of certain paperback novels at the place of business of P-K News Service, Junction City, Kansas. After hearing, the court entered a second order directing the sheriff to destroy the 1,715 copies of 31 novels which had been seized. The Kansas Supreme Court held that the procedures met constitutional require ents and affirmed the District Court's order. 191 Kan. 13, 379 P.2d 254. Probable jurisdiction was noted, 375 U.S. 919, 84 S.Ct. 268, 11 L.Ed.2d 163. We conclude that the procedures followed in issuing the warrant for the seizure of the books, and authorizing their impounding pending hearing, were constitutionally insufficient because they did not adequately safeguard against the suppression of nonobscene books. For this reason we think the judgment must be reversed. Therefore we do not reach, and intimate no view upon, the appellants' contention that the Kansas courts erred in holding that the novels are obscene.
Section 4 of the Kansas statute requires the filing of a verified Information stating only that 'upon information and belief * * * there is (an) * * * obscene book * * * located within his county.' The State Attorney General went further, however, and filed an Information identifying by title 59 novels, and stating that 'each of said books (has) been published as 'This is an original Nightstand Book." He also filed with the Information copies of seven novels published under that caption, six of which were named by title in the Information; particular passages in the seven novels were marked with penciled notations or slips of paper. Although also not expressly required by the statute, the district judge, on application of the Attorney General, conducted a 45-minute ex parte inquiry during which he 'scrutinized' the seven books; at the conclusion of this examination, he stated for the record that they 'appear to be obscene literature as defined' under the Kansas statute 'and give this Court reasonable grounds to believe that any paperbacked publication carrying the following: 'This is an original Night Stand book' would fall w thin the same category * * *.' He issued a warrant which authorized the sheriff to seize only the particular novels identified by title in the Information. When the warrant was executed on the date it was issued, only 31 of the titles were found on P-K's premises. All copies of such titles, however, 1,715 books in all, were seized and impounded. At the hearing held 10 days later pursuant to a notice included in the warrant, P-K made a motion to quash the Information and the warrant on the ground, among others, that the procedure preceding the seizure was constitutionally deficient. The claim was that by failing first to afford P-K a hearing on the question whether the books were obscene, the procedure 'operates as a prior restraint on the circulation and dissemination of books' in violation of the constitutional restrictions against abridgment of freedom of speech and press. The motion was denied, and following a final hearing held about seven weeks after the seizure (the hearing date was continued on motion of P-K), the court held that all 31 novels were obscene and ordered the sheriff to stand ready to destroy the 1,715 copies on further order.
The steps taken beyond the express requirements of the statute were thought by the Attorney General to be necessary under our decision in Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127, decided a few weeks before the Information was filed. Marcus involved a proceeding under a strikingly similar Missouri search and seizure statute and implementing rule of court. See 367 U.S. 719, at notes 2, 3, 81 S.Ct., at 1709. In Marcus the warrant gave the police virtually unlimited authority to seize any publications which they considered to be obscene, and was issued on a verified complaint lacking any specific description of the publications to be seized, and without prior submission of any publications whatever to the judge issuing the warrant. We reversed a judgment directing the destruction of the copies of 100 publications held to be obscene, holding that, even assuming that they were obscene, the procedures leading to their condemnation were constitutionally deficient for lack of safeguards to prevent suppression of nonobscene publications protected by the Constitution.