TX ABC went into permitted premises and seized allegedly obscene materials, and the operator of the premises sued on the familiar theory that potentially protected materials are subject to a prompt determination of alleged obscenity. Full scale confiscation of material was unconstitutional. Carico Investments v. Texas Alcoholic Bev. Comm’n, 439 F. Supp. 2d 733 (S.D. Tex. July 24, 2006):

The TABC attempts to deflect the Fourth Amendment issue. The TABC argues there is no Fourth Amendment issue because there is no reasonable expectation of privacy at TABC licensed premises. This is undoubtedly true, but irrelevant. The Fourth Amendment issue here is unreasonable seizures, not unreasonable searches.

The TABC admits that no procedure beyond the subjective determination of individual TABC officers was used in seizing otherwise presumptively protected materials. Cf. Universal Amusement Co. v. Vance, 587 F.2d 159, 172 (5th Cir. 1978) (en banc), aff’d, 445 U.S. 308 (1980) (concluding Texas statute was constitutionally infirm because of its inadequate process for ascertaining whether materials were obscene). It attempts to bypass the issue by arguing that obscene materials are not protected and therefore may be confiscated. But this assumes the very premise (obscenity) that is required to be proven. Cf. A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 211 (1964) (“It is no answer to say that obscene books are contraband. . . .”). The law neither allows this presumption, nor does it allow seizures solely on the judgment of TABC agents that the magazines or movies were obscene. See Roaden v. Kentucky, 413 U.S. 496, 506 (1973) (citations omitted) (“The seizure proceeded solely on a police officer’s conclusions that the film was obscene; there was no warrant. Nothing prior to seizure afforded a magistrate an opportunity to ‘focus searchingly on the question of obscenity'”). There is no question that the TABC actions failed to comport with the procedural safeguards mandated by a clear line of Supreme Court precedent.

Border patrol set up a “static observation post” on I-40, 12 miles east of Albuquerque, 250 miles from the border. “The government states that the observation post was set up at that location because Department of Homeland Security Intelligence indicates that I-40 is a known alien smuggling corridor. [¶] According to border patrol agents, they had reasonable suspicion that the vehicle may have been engaged in alien smuggling. Specifically, the agents assert that the following factors supported their suspicion: characteristics of the area of the stop, previous experience of the agent with alien traffic, driver’s and passengers’ response to the border patrol observation post, aspects of the vehicle, appearance of vehicle as heavily loaded, cargo inconsistency, ethnicity of occupants and general occupant relationships.” Based on the totality, there was no RS for a stop. “This Court is also struck by the fact that, as a matter of border patrol policy, the further from the border a border patrol stop occurs, the less effort that border patrol agents make to determine whether the vehicle originated from the border.” United States v. Juarez-Torres, 2006 U.S. Dist. LEXIS 52898 (D. N.M. July 21, 2006).