BAILEY ALDRICH, Senior Circuit Judge.
Defendants were convicted of transporting obscene matter in interstate commerce for the purpose of sale, 18 U.S.C. § 1465, and for conspiracy, 18 U.S.C. § 371. The convictions were affirmed by a divided panel and subsequently their appeals were heard en banc. We reverse.
On the morning of February 28, 1978, F.B.I. special officer Gilligan presented to a U.S. magistrate his four-page affidavit requesting a warrant authorizing the search for, and seizure of, obscene matter allegedly in a panel truck and presently being transported from defendants’ warehouse in Providence, Rhode Island, for delivery to retail stores in Boston’s Combat Zone.1 Accompanying the affidavit were copies of three magazines, entitled Turkish Delight, Sex Foto Fiction No. 1, and Sex Foto Fiction No. 2, hereinafter sometimes the affidavit magazines. The affidavit adequately showed that copies of these magazines, openly traced to defendants’ truck, and openly offered for sale at Combat Zone stores, had been there purchased by Boston police officers on various dates between January 17 and February 2, 1978. On the basis of the affidavit and inspection of the magazines the magistrate issued a warrant commanding the seizure of,
“a quantity of obscene materials, including books, pamphlets, magazines, newspapers, films and prints” presently in said truck. Contemporaneously, the magistrate issued an Order, so-called, containing his findings, and concluding with instructions to the officers.2
The warrant and the order did not refer to each other. The truck was stopped at some time prior to 11:45 A.M. when a copy of the warrant was served on the driver. Officer Gilligan, who ultimately led the search following the unauthorized arrest of the driver and the taking of the truck and contents to the F.B.I. garage, possessed a copy of the order.
[866]*866Pausing here, we observe that the warrant language (“obscene materials”) was precisely what was condemned in Marcus v. Search Warrant, 1961, 367 U.S. 717, 731-32, 81 S.Ct. 1708, 1715-16, 6 L.Ed.2d 1127, as constituting an impermissible general warrant. We are unanimously of the view that in this circumstance the failure at least to attach, or to incorporate the order by reference into the warrant, so that it would read on it, is unsupported by any discovered authority, and a majority of the court tends to believe the omission would have been fatal had the point been pressed below. However, remarks defendant made in the district court were inconsistent with asserting this objection (“[Y]our Honor ... we have an agreement that the agents were acting under the order ____”) and since we are confident that the procedure will not occur again, we need not reach a final conclusion as to its validity.3
At the garage the officers searched through a large number of cartons,4 and by afternoon had separated out eight magazines and five films, hereinafter sometimes the warrant items, for inspection, in situ, by the magistrate. After making that examination the magistrate, finding them obscene, issued a second warrant, calling for their seizure, which was done. Motions to suppress were twice denied. Imperial Distributors, Inc. v. United States, D.Mass., 1979, 473 F.Supp. 294; Id., D.Mass., 1980, unreported.
It will be noted that, perhaps in recognition of their staleness, none of the affidavit magazines was included in the order’s directions, but only “materials of the same tenor.” It is to be further noted that the single substantive count and the single conspiracy count of the indictment are based upon the warrant items, only. As a consequence, if all of these were wrongly seized, the indictment must fail, and if at least some were improper, e.g., the films, the verdicts must be set aside, inasmuch as the jury could have convicted by finding any single item obscene. Cf. Brochu v. Ortho Pharmaceutical Corp., 1 Cir., 1981, 642 F.2d 652; Clark v. Taylor, 1 Cir., 1983, 710 F.2d 4, 8 n. 2.
There are two basic complaints, which we will consider on the assumption that the order was a valid allonge to the warrant.
The Warrant
The Fourth Amendment was a response to the writs of assistance that gave officers of the crown roving powers of intrusion upon person and property. In this connection it would be difficult to find anything more presently apt than the language of the Court in Stanford v. Texas, 1965, 379 U.S. 476, at 481-85, 85 S.Ct. 506, at 509-11, 13 L.Ed.2d 431. After quoting the Fourth Amendment, the Court said,
“These words are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever ‘be secure in their persons, houses, papers, and effects’ from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws.
“What is significant to note is that this history is largely a history of conflict between the Crown and the press. It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and eigh[867]*867teenth centuries____ In later years warrants were sometimes more specific in content, but they typically authorized the arrest and search of the premises of all persons connected with the publication of a particular libel, or the arrest and seizure of all the papers of a named person thought to be connected with a libel.
“This is the history which prompted the Court less than four years ago to remark that ‘[t]he use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new.’ Marcus v. Search Warrant, 367 U.S. 717, at 724 [81 S.Ct. 1708 at 1712, 6 L.Ed.2d 1127]. ‘This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.’ Id., at 729 [81 S.Ct. at 1715].
“In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis of their seizure is the ideas which they contain. See Marcus v. Search Warrant, 367 U.S. 717 [81 S.Ct. 1708, 6 L.Ed.2d 1127]. A Quantity of Books v. Kansas, 378 U.S. 205 [84 S.Ct. 1723, 12 L.Ed.2d 809]. No less a standard could be faithful to First Amendment freedoms.
“ ‘The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a' warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.’ Marron v. United States, 275 U.S. 192, at 196 [48 S.Ct. 74, at 76, 72 L.Ed. 231].”
To tell the officers to seize anything which, in their opinion, meets the omnibus legal definition of obscenity is not “scrupulous exactitude.” Nor does it become such by adding “of the same tenor” as three named magazines, especially when the sameness is so broadly defined as to include any communicative material, from books to prints to motion pictures. We note particularly Stanford’s requirement, ante, quoting from Marron v. United States, that “nothing is left to the discretion of the officer.”
Continuing with Stanford,5 379 U.S. at p. 486, 85 S.Ct. at p. 512,
“We need not decide in the present case whether the description of the things to be seized would have been too generalized to pass constitutional muster, had the things been weapons, narcotics or ‘cases of whiskey.’ See Steele v. United States No. 1, 267 U.S. 498, 504 [45 S.Ct. 414, 416, 69 L.Ed. 757]18 The point is that it was not any contraband of that kind which was ordered to be seized, but literary material — ‘books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas, and the operations of the Communist Party in Texas.’ The indiscriminate sweep of that language is constitutionally intolerable. To hold otherwise would be false to the terms of the Fourth Amendment, false to its meaning, and false to its history.
It is true that Stanford was concerned with political literature, and social ideology, but there are no degrees here of First Amendment protection, any more than there are measures of distress or offensiveness, depending on the reader, listener, or [868]*868viewer.6 It was but a step from this to the recent unanimous opinion in Lo-Ji Sales, Inc. v. New York, 1979, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920. There a police officer, having openly bought two films from defendant’s “adult” bookstore, presented to the town justice the following affidavit.
“While on the premises I observed what I have reasonable cause to believe are the same or similar films. I also observed in the premises other reels of film, magazines and other objects. Based upon my observations, and my conversations with Mr. Mandakis which indicated to me that the films and magazines portrayed similar activities as described above, I have reason to believe that this material is being possessed in violation of Article 235 of the Penal Law.” (U.S. Supreme Court record, p. 6a.) (Emphasis suppl.)
The Court held this supplied no probable cause for a warrant extending beyond copies of the original films. Correspondingly, the Court put it the other way; a seizing officer’s determination of similarity is equally unacceptable.
“Based on the conclusory statement of the police investigator that other similarly obscene materials would be found at the store, the warrant left it entirely to the discretion of the officials conducting the search to decide what items were likely obscene and to accomplish their seizure. The Fourth Amendment does not permit such action.” 442 U.S., ante, at 325, 99 S.Ct., at 2324. (Emphasis suppl.)
The officer’s disability was not based upon ignorance of standards, and hence curable, as our dissenting brothers would have it, by furnishing him specific instructions in terms of the Court’s definition of obscenity. The definition in Miller v. California, 1973, 413 U.S. 15, 24-25, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419, which they would improperly import, was for use by impartial jurors, under the guidance of the court, and not, as Lo-Ji pointed out, for a searching officer, disqualified because he was not “neutral and detached.” It may be noted that the actual standard the Lo-Ji police officer applied in determining “similar activities,” and “similar obscene materials,” was even more specific than the one contained in the order here; yet the Court held his affidavit unacceptable.7
Correspondingly, as a non-neutral and un-detached officer cannot express legal conclusions in an affidavit, he cannot exercise judgment when making seizures. In Lo-Ji the town judicial officer, after issuing a warrant for the seizure of the two named films, left the warrant open, and himself repaired to defendant’s store, where he viewed more films and magazines and added them to the warrant. Although by training and experience he was, of course, personally qualified, the Court, again voicing the analogy to writs of assistance, invalidated these additions, saying that by participating in the search the town justice cast himself in the character of the police and accordingly was precluded from making such determinations.8
[869]*869Our dissenting brothers denigrate Lo-Ji, and rely upon earlier circuit court decisions that lacked the benefit of its instructions, and a small number of later cases9 that ignored them. Thus United States v. Marti, 2 Cir., 1970, 421 F.2d 1263, a pre-Lo-Ji ease, is extolled as “not insistpng] upon literal compliance” with Stanford v. Texas’ denial of discretion to the police, although Lo-Ji has made it clear that the Court meant exactly that. Their reliance upon cases involving “instruments of crime” overlooks that in Stanford v. Texas, 379 U.S., ante, at 486, 85 S.Ct. at 512, quoted ante, the Court distinguished between “literary material,” presumptively protected by the First Amendment, and readily identifiable objects.
While our brothers do not adopt the government’s repeated assertion, both in the district court and here, that there was but a “limited detention” and no seizure until after the magistrate had viewed the items in situ at the garage, they would have it that it was “considerably more limited than the typical seizure” because of the magistrate’s prompt review “that same afternoon.” 10 Thus would every seizure under a general warrant be sanitized if the magistrate followed close on the heels of the officers. This is to forget black letter law that “[a]ny idea that a search can be justified by what it turns up was long ago rejected in our constitutional jurisprudence.” Bumper v. North Carolina, 1968, 391 U.S. 543, 548 n. 10, 88 S.Ct. 1788, 1791 n. 10, 20 L.Ed.2d 797. The government, having identified no forfeitable fish, cannot cast a net over the whole pond and retain whatever forfeitable fish are discovered, so long as it shortly returns the rest. This is precisely the unbridled expedition that the Fourth Amendment was designed to prevent, and which the Court has repeatedly condemned as peculiarly improper when employed to trespass on First Amendment rights.
Finally, our brothers deplore the difficulties the police would face if they could not conduct themselves as they did here. This seems a peculiarly unnecessary place for police difficulties to be used as an excuse for violating the Fourth Amendment. Unlike drugs, the magazines were openly for sale, and were openly delivered by defendants’ trucks. The government already had a case, on the three' original magazines, traced by the officers to the defendants. The purchases could be repeated, if there were, in fact, more such magazines. If officers’ evidence against the defendants were thought insufficient to persuade a jury, surely the store managers could be put in a position of welcoming immunity to testify. If the government wanted to grandstand, all it needed was to read a handful of Supreme Court opinions, instead of providing work for seven judges. It is noteworthy that there were no First Circuit cases offering contrary advice.
Probable Cause
The government is equally deficient with respect to the existence of probable cause. It begins by grossly overstating [870]*870the affidavit. It was adequately shown that defendants’ trucks had been delivering “magazines, books and newspapers” to various Combat Zone stores since April, 1975. However, until January, 1978, no single item was identified, let alone shown to be obscene.11 On the general subject of obscenity the affidavit offered, exclusively, the unsupported opinions of two Boston police officers. “[T]he chief business of [Combat Zone] stores is to regularly offer for sale numerous items, including books, magazines, prints and films, which are obscene as matter of law,” and to “offer pornographic materials for sale to the public.” These conclusions were, of course, worthless. Lo-Ji Sales, Inc., ante; Roaden v. Kentucky, ante, 413 U.S. at 502-03, 93 S.Ct. at 2800. It was adequately shown that the stores offéred peepshows. The officers viewed films exhibited therein and, “in their opinion, the films have invariably displayed various types of hard core pornography.” Again, these opinions are worthless. Nor does the fact that they were Combat Zone peepshows raise a presumption of obscenity. Fantasy Book Shop, Inc. v. City of Boston, n. 6, ante.
With regard to defendants’ connection with films, the sole showing was that on a single occasion, four months prior to the seizure, one of defendants’ truck drivers entered a Combat Zone store and remained there “about 20 minutes and was observed servicing the peep show film machines therein.” Other than this, defendants were not shown to have any connection with films. The word “servicing” was not explained. Not until en banc consideration was it suggested that “servicing machines” might mean supplying films, rather than mechanical maintenance which a driver might have done as a private matter. Significantly in this respect, while on all other surveillances the number of cartons carried in was recorded, none was noted then.
With no films traced to defendants’ truck on 14 occasions, the likelihood of there being any present on the 15th is far short of probable cause. To say that because the stores sold films, defendants must have been their supplier, is the rankest speculation.
It is true that the magistrate recited films in his order, but it is apparent that he did this as a result of adopting, wholesale, the affidavit’s final conclusions, inasmuch as he also included, as being in the truck, pamphlets and prints, although at no time were such documents even remotely traced to defendants. Inspection of the penultimate paragraph of the order makes evident that the entire findings are built on the affidavit magazines, plus acceptance verbatim of the officers’ generalizations.
While conceding that “ ‘probable cause’ is more difficult,” the dissent would write off the difficulties as “technicalities,” and turn to “common sense.” We believe this quite erroneous. Stripped of unwarranted opinion, all that the affidavit directly supports is that for almost three years defendants had been supplying great quantities of books, magazines and newspapers to stores that sold materials that were sexually explicit. Nothing in the affidavit can support a finding that any matter supplied by defendants or, indeed, sold in the stores throughout the period, was obscene, other than the three affidavit magazines of 4-7 weeks before. Sexually explicit, whatever it may mean to a lay person, does not mean obscene. Fantasy Book Shop, Inc. v. City of Boston, ante, n. 6; cf. Roth v. United States, 1957, 354 U.S. 476, 487-88, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498; Jacobellis v. Ohio, 1964, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793. Our brothers concede that the officers’ determinations of obscenity were valueless. They contend, however, that since the stores were for “adult entertainment,” rather than religious devotions, there must have been more material similar in tenor to the three magazines discovered. [871]*871How in view of the Lo-Ji affidavit, n. 7, ante, they distinguish Lo-Ji, is not clear.12
So far as appears from the affidavit, in nearly three years none of defendants’ customers had been prosecuted, and in 14 surveillances, police “who have spent the majority of their working time ... enforcing the Commonwealth of Massachusetts’ laws dealing with obscenity,” had found only three magazines traceable to defendants thought worthy of presentation to a magistrate. In light of this, we must suspect that our brothers’ willingness to wager there were more items of similar character in the next truck could be based only on an assumption that these were, nevertheless, pornography shops and that the police, through incompetence, inefficiency, or perhaps worse, had failed in their duty. This is not an affirmative showing of “probable cause, supported by Oath or affirmation.”
Moreover, even with the best of assumptions, we must wonder how much of their patrimony our brothers would have risked on defendants’ next truck containing films, when none had ever been seen before. Their contention that films could be included in the order even if initially there was lacking “cause to believe [they] would likely be found,” because, “[i]f there were no films on the truck, the inclusion of films in the order would seem harmless,” while at the same time saying they could be seized if any were discovered, strikes at the heart of the Fourth Amendment. This would convert the plain view exception to probable cause, based on inadvertent discovery, Coolidge v. New Hampshire, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, into a means for deliberate circumvention of the requirement. The dissent would thus support a warrant both lacking “probable cause supported by Oath or affirmation,” as well as failing to “particularly deserib[e] the ... things to be seized.”
In short, by a combination of contentions, some of which, however put, disregard Supreme Court decisions, and by using the word “reasonable” in the Fourth Amendment out of context, our brothers would adopt a “flexible approach” to reach a “common sense” result. In addition to the fact that, as to films, there was no probable cause whatever, the inescapable fact is that this case started with a classic general warrant, supplemented by an order directed to, and solely to, items that could only be identified by government agents exercising discretion which, at one point even the dissent concedes, the Court denied them, and which, accordingly, remained a general warrant, in, of all places, an area protected by the First as well as the Fourth amendment. We can only repeat what the unanimous Court said in Lo-Ji Sales, ante, 442 U.S. at 329, 99 S.Ct. at 2326,
“Our society is better able to tolerate the admittedly pornographic business of petitioner than a return to the general warrant era; violations of law must be dealt with within the framework of constitutional guarantees.”
Our brothers would forget all this because of the Combat Zone’s general reputation, and by inventing a new principle, that “reasonable” repair cures constitutional violations. This is not “common sense” to which we subscribe.
Perhaps because the defendants to whom it might apply were minor characters, the government has not raised any question of lack of standing, and we will not volunteer to do so. Both because the warrant and order were basically defective, and because probable cause was lacking for whatever could be thought intended, the verdicts are set aside, the judgments of conviction are reversed and the causes are remanded to the district court with instructions to dismiss the indictment.