Opposition — Waller v. Georgia

Office. Supreme Court, U.S.

rFiLt soe

NO. 83-321 OCT 12 1983

ALEXANDER L. STEVAS,

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1983

GUY WALLER,

Petitioner,

Vv.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

BRIEF IN OPPOSITION FOR THE RESPONDENT

Mary Beto WESTMORELAND

Assistant Attorney General

Counsel of Record for

Respondent

MicHak. J. Bowers

Attorney General

James P. Gooop, Jr.

Executive Assistant

Attorney General

Marion O. Gorpon

First Assistant

Attorney General

WiuuraM B. HI, Jr.

Senior Assistant

Attorney General

as Lewis R. SLaTon

132 State Judicial Bldg. eter

40 Capitol Square, S.W. District Attorney

Atlanta, Georgia 30334 H. ALLEN More

(404) 656-3349 Assistant District Attorney

QUESTIONS PRESENTED

l.

Whether the trial court properly

ordered the courtroom closed during

the hearing on the motion to suppress.

2.

Whether the Supreme Court of

Georgia properly concluded that

0.C.G.A. § 16-14-7(£); Ga. Code Ann.

§ 26-3502(d) (2) is constitutional on

its face.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED, ........i

STATEMENT OF THE CASE... ..... 1

REASONS FOR NOT GRANTING THE WRIT, . 9

A. THE TRIAL COURT PROPERLY

RULED TO CLOSE THE HEARING

ON THE MOTION TO SUPPRESS

PRIOR TO TRIAL. . ...-:'- 9

B. THE GEORGIA SUPREME COURT

PROPERLY CONCLUDED THAT

O.C.G.A. § 16-14-7(f£); GA.

CODE ANN. § 26-3405(d)(2)

DOES NOT VIOLATE THE FOURTH

AMENDMENT TO THE UNITED

STATES CONSTITUTION. ... 14

CONCLUS I ON * . . . . 7 . . . * 7 * * 2 5

CERTIFICATE OF SERVICE .....+ + 27

e < . -

ne Te

TABLE OF AUTHORITIES

Cases:

Carroll v. United States, 267

U.S. “132 (1925). . . . . . . . 20

Caleio-Toledo v. Pearson Yacht

Leasing Co., 416 U.S. 663

a. = > — ’ > — > _ > 7 . 20

Chimel v. California, 395 U.S.

(1964) . .- * > . — > . * :'

Chambers v. Maroney, 399 U.S.

> > _ > . . o >. > . 20

Kansas City Star lication of

666 F.2d 1168 tere Cir. 1981).12

Kremen v. United Stat@és, 353 U.S.

22

Lowe v. State, 141 Ga. App. 433,

~E.2d 807 (1977). . .. .1l

Marron v. United States, 275 U.S.

192 (1927) _ > > 7. * _ . > . -22

New York v. Belton, 453 U.S. 454

T1981) > > > a >. >. >. > a * > .19

United States v. Dorfman, 690 F.2d

I230 t 7th Cir. 1982) >. _ > > _° 12

Maller. et al. v. State, 251 Ga.

’ oo o ’ 1983) ye

-iii-

ll,

Warden v. Hayeen. 387 U.S.

* . . * . . >. >. 20

Statutes

0.C.G.A. § 16-11-64(a)(8); Ga.

Code Ann. § 26-3004(k) ae! 3, 10

0.C.G.A. § 16-14-7(f£); Ga.

Code Ann. § 26-3405(d)(2). 6, 14, 16,

19

NO. 83-321

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

GUY WALLER,

Petitioner,

v.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI]

TO THE SUPREME COURT OF GEORGIA

BRIEF IN OPPOSITION FOR THE RESPONDENT

PART ONE

STATEMENT OF THE CASE

Petitioner, Guy Waller, was

indicted along with numerous others on

February 9, 1982, by the Grand Jury of

Pulton County on charges of violation

of the Georgia Racketeer Influenced

and Corrupt Organizations Act. All

=

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; .

-

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is

defendants entered pleas of not

guilty. A trial was begun on June 21,

1982 for the Petitioner and others.

At the conclusion of the trial,

Petitioner was found guilty of

commercial gambling and commynicating

gambling information. Petitioner was

sentenced to five years with three

years to serve and the balance to be

served on probation, a $20,000 fine

and twelve months probation on another

charge. (R. 200, 207-8).

“ The facts in the case show that

between June, 1981, and January, 1982,

the various defendants participated in

a gambling organization which

conducted a lottery based on the daily

stock and bond volume on the New York

Stock Exchange. This “lottery” was

conducted in the metropolitan Atlanta

area. Gambling information was

transmitted by way of electronic means

and stored in a microcomputer

maintained by Defendant Clarence Cole.

Prior to trial, a hearing was held

on the motion to suppress. The state

filed a motion on June 14, 1982, to

close the hearings to the public. In

making this motion, the state asserted

that the hearing was going to involve

evidence of a sensitive nature. The

litigation on the motion would of

necessity involve the introduction of

evidence which would affect other

individuals not on trial at that time

and individuals not indicted at this

time. A portion of this information

involved certain wire tap evidence.

Under 0.C.G.A. § 16-11-64(a)(8); Ga.

Code Ann. § 26-3004(k), “Any

4 <3-

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‘hol me 4 ‘, bier se OS BERS

[RV rt FP” eee . — 7? eee Oe. «ee Sa — t=

publication of the information or

evidence obtained under a warrant

issued hereunder other than that

necessary and essential to the

preparation of and actual prosecution

of the crime specified in the warrant

shall be an unlawful invasion of

privacy under this part and shall

cause such evidence and information to

be admissible in any criminal

prosecution.” Therefore, in order to

allow the state to utilize the same

information in subsequent prosecutions

against other individuals, the stated

sought to close this portion of, the

moton hearing so as not to taint the

evidence and preclude subsequent use

against individuals not then on

trial. The court concluded that if

the evidence was going to be offered

Zh ail vale

~~ Ss eas

at the trials of other offenders, the

presentation of the evidence at the

hearing on the motion to suppress

would amount to publication and would

taint the evidence. (M.T. 6-8).

Attorney Charles Smith agreed with

the observation made by the state and

concurred with the request,

particularly insofar as the motions

were concerned. He did not concur as

to the trial. Attorney Herbert Shafer

opposed the closure and asserted that

he would insist on the constitutional

right to an open trial. (M.T. 11).

Subsequently, the court granted

the motion to close the proceedings as

to the hearing on the motion to

suppress. Attorney Shafer sought to

have some people remain in the

courtroom, but the trial court ruled

that the statute was very specific,

"And I think that means everybody must

go except the defendants, counsel,

necessary witnesses of course who

appear and the officers of the court."

(M.T. 14)... Attorney Smith further

interposed an objection to Attorney

Shafer's wife remaining in the

courtroom. The court granted the

motion to close the proceedings and

excluded all individuals except those

enumerated by the court.

After the trial and convictions,

the Petitioner and the other |

defendants filed a direct appeal to

the Supreme Court of Georgia

challenging, among other things, the

closure of the courtroom and the

constitutionality of 0.C.G.A.

§ 16-14-7(f); Ga. Code Ann.

§ 26-3405(d)(2). That court affirmed

the conviction and sentences and

concluded that the particular code

section was constitutional on its face

and did not violate the Fourth

Amendment. The court also concluded

that the statute was not

unconstitutional as applied in this

case. In reviewing the issue of

closure, the court concluded that the

trial court balanced the rights to a

public hearing against the privacy

rights of others and closed the e

hearing. Under those principles, the

court concluded that the Sixth

Amendment right to a public trial was

not violated. Waller, et al. v.

State, 251 Ga. 124, 8.E.2d ’

1983). (See Petitioner's Appendix

A). The motion for rehearing was

denied by that court on June 18,

1983. The instant petition for a writ

of certiorari was then filed in this

Court.

<

err, fk CO Ae Syren,

PART TWO

REASONS FOR NOT GRANTING THE WRIT

A. THE TRIAL COURT PROPERLY

RULED TO CLOSE THE HEARING ON

THE MOTION TO SUPPRESS PRIOR

odd

TO TRIAL.

z Petitioner presents as the first

issue before this Court a challenge to

the trial court's closure of the

courtroom during the hearing on the

motion to suppress. Petitioner has

asserted that this closure violated

his right to a public trial under the

Sixth Amendment.

At the beginning of the hearing on

the motion to suppress, the state

reasserted the formal motion for

clacass: bachnne it would be necessary

during the hearing on the motion to

utilize evidence which could involve a

-9-

reasonable expectation of privacy of

persons who were not presently on

trial. This motion was made based on

the provisions in 0.C.G.A.

§ 16-11-64(a)(8); Ga. Code Ann.

§ 26-3004(k) addressing publication of

wire tap information and subsequent

use of that information in other

prosecutions. The Supreme Court of

Georgia addressed this issue and found

the following:

In the hearing here, information

was revealed which was potentially

harmful to others, would tend to

violate the privacy of others and

might prejudice other potential

detendants. Under these

circumstances, the court balanced

appellants’ right to a public

hearing on the motion against the

-10-

¥

privacy rights of others and

closed the hearing.

Waller v. State, supra.

The Court noted that the trial

court properly exercised its inherent

power “to preserve order and decorum

in the courtroom to protect the rights

of parties and witnesses, and

generally to further the

administration of justice." Lowe v.

State, 141 Ga. App. 433, 435, 233

S.E.2d 807 (1977). Under those

circumstances, the Supreme Court of

Georgia concluded that the

Petitioner's Sixth Amendment right to

a public trial wag not violated.

The trial court was faced with a

situation involving evidence secured

during court~-authorized electronic

surveillance. The state had announced

-ll-

its intention to and did play portions

of this electronic surveillance during

the motion hearing to establish

probable cause. The trial court had

the responsibility to protect privacy

of the defendant and individuals not

then on trial and those individuals

not under indictment at that time.

Due to the fact that the right of

privacy is speci ficaily recognized in

the statute authorizing

court-authorized electronic

surveillance, the right of access and

the right to a public trial may be

legitimately limited under the narrow

circumstances presented by the instant

case. See United States v. Dorfman,

690 F.2d 1230 (7th Cir. 1982);

Application of Kansas City Star, 666

F.2d 1168 (8th Cir. 1981). $

-12-

Based on the particular

circumstances in the instant case,

Respondent submits that the trial

court acted properly in closing the

hearing on the motion to suppress to

protect the privacy of other

individuals not being tried at that

time. In balancing the rights

presented, the court properly

exercised its discretion and did not

violate the Petitioner's right to a

public trial in the instant case.

Therefore, Respondent submits that no

federal constitutional issue is

presented by this claim.

-13-

es is

B. THE GEORGIA SUPREME COURT

PROPERLY CONCLUDED THAT

0.C.G.A. 4 16-14-7(f£); GA.

CODE ANN. § 26-3405(d)(2)

_ DOES NOT VIOLATE THE FOURTH

AMENDMENT TO THE UNITED

STATES CONSTITUTION.

Petitioner asserts that 0.C.G.A.

§ 16-14-7(f£); Ga. Code Ann.

§ 26-3405(d)(2) violates the Fourth

Amendment in that it allows unbridled

discretion to police officers in

executing a search and allegedly

constitutes impermissible delegation

of magisterial duty.

The statute in question is a

subsection of the provisions for

forfeiture of property under the

Racketeer Influenced and Corrupt

Organizations Act (Georgia RICO Act).

-14-—

Under the section in question, various

provisions are set forth for

forfeiture proceedings. The statute

specifically declares certain property

be subject to forfeiture and sets out

specific procedures for the

forfeiture. The proceeding is one to

which the Georgia Civil Practice Act

applies. The particular subsection of

the statute in question provides as

follows:

Seizure may be effected by a law

enforcement officer authorized to

enforce the penal laws of this

state prior to the filing of the

complaint and without a writ of

seizure if the seizure is incident

to a lawful arrest, search or

inspection and the officer has

probable cause to believe the

-15-

property is subject to forfeiture

and will be lost or destroyed if

not seized. Within ten days of

the date of seizure, the seizure

shall be reported by the officer

to the district attorney of the

circuit in which the seizure is

effected; and the district

attorney shall, within thirty days

of receiving notice of seizure,

file a complaint for forfeiture.

The complaint shall state in

addition to the information

acquired in subsection (e) of this

Code section, the date and place

of seizure.

0.C.G.A. § 16-14-7; Ga. Code Ann. §

26-3405(d) (2).

The Georgia Supreme Court

considered the challenge to this

-16-

|

particular code section on its face

and noted that a seizure under this

section is allowed only in certain

prescribed circumstances. The seizure

must be pursuant to a lawful arrest,

search or inspection and, further, the

law enforcement officer must have

probable cause to believe that the

property is subject to forfeiture or

the property will be lost or destroyed

if not seized. As the statute

specifically provides on its face that

the search or inspection must be

lawful, there is clearly a requirement

that the search be made either

pursuant to a warrant, incident to a

lawful arrest, or under other exigent

circumstances which would render the

search or inspection lawful.

Therefore, as noted by the Georgia

Supreme Court, by definition the

—— th

statute complies with the Fourth

Amendment. Waller v. State, supra.

The statute in question provides

four conditions precedent to the

seizure of property under this

subsection. The first requirement is

that the seizure be made by a law

enforcement officer authorized to

enforce the penal laws of this state.

This requirement is clearly

constitutional on its face.

The subsection secondly requires

that the seizure be made incident to a

lawful arrest, search or inspection.

As noted by the Supreme Court of

Georgia, the designation of the search

or inspectionas “lawful” is clearly in

compliance with the Fourth Amendment

to the United States Constitution.

In addition to these two

requirements, the seizing officer must

-18-

also have probable cause to believe

that the property is subject to

forfeiture as provided in 0O.C.G.A.

§ 16-14-7(a): Ga. Code Ann.

§ 26-3405(8). In addition, officers

,y would be authorized to seize other

evidence which is in plain view at the

time the search is executed. Those

officers making an arrest are also

allowed to search persons and their

immediate presence for evidence

without a warrant specifically listing

those particular items. See New York

v. Belton, 453 U.S. 454 (1981).

Therefore, an officer who is executing

a valid arrest warrant or a valid

search warrant may seize contraband,

evidence or weapons under the

prescribed circumstances without these

items necessarily being listed on the

search warrant. Items subject to

-19-

forfeiture may be dealt with ina

similar fashion. See Calero-Toledo v.

Pearson Yacht Leasing Co., 416 U.S.

663 (1974).

The fourth requirement set forth

by the statute is that the officer

have probable cause to believe that

the property will be lost or destroyed

if not seized. This is similar to the

exigent circumstances requirement

utilized in standard search and

seizure situations. Exigent

circumstances have been recognized in

various settings, including the

automobile exception created in

Carroll v. United States, 267 U.S. 132

(1925) and subsequently followed in

Chambers v. Maroney, 399 U.S. 42

(1970). Exigent circumstances have :

also been recognized in the “hot

pursuit” exception set forth in Warden

-20-

v. Hayden, 387 U.S. 294 (1967) and the

search incident for the arrest

exception in Chimel v. California, 395

U.S. 752 (1964).

Respondent submits that as the

four conditions precedent set forth in

this subsection do not violate the

Fourth Amendment to the United States

Constitution, the code section in

question is clearly constitutional on

its face.

Petitioner has also asserted that

the court should have suppressed all

evidence seized rather than only that

evidence which the court concluded had

been improperly seized. This argument

was made based on an assertion that

this was a general search and

everything seized should be suppressed

pursuant to the exclusionary rule.

The Georgia Supreme Court noted

that such items as were unlawfully

seized were excluded from evidence

pursuant to the motion to suppress.

In Marron v. United States, 275 U.S.

192 (1927), cited by the Petitioner,

it was concluded that a search warrant

describing intoxicating liquors and

articles for the manufacturer did not

specifically authorize a seizure of a

ledger and bills of account. The

court went on to find, however, that

the ledger and bills were seized

incident to a lawful arrest.

In Kremen v. United States, 353

U.S. 346 (1956), there were no search

warrants in existence. The search of

the persons and the premises was made

based on arrest warrants for only two

of the persons present. Under those

circumstances, it was concluded that

=~22=

the evidence was not seized from

persons for whom the officers had

arrest warrants; therefore, the

evidence was not legally seized.

The Petitioner's reasoning that

all items and information seized

pursuant to a valid search warrant

should be excluded when the officers

may have gone beyond the scope of the

search warrant is not justified under

the instant circumstances because it

is clearly a deviation from the

purposes intended to be served by the

exclusionary rule. The purposes of

the exclusionary rule and the intent

of the Fourth Amendment are served by

excluding evidence improperly seized,

not by excluding evidence which was

properly seized at the same time.

Therefore, Respondent asserts that no

such requirement should be

established. Furthermore, contrary to

the assertions of the Petitioner, this

did not deprive the Magistrate of the

opportunity to exercise meaningful

supervision and define the limits of

the watzent. As evidence was excluded

which was allegedly illegally seized,

the question as to the Magistrate's

supervision is simply not presented.

Therefore, Respondent submits that

the code section attacked in the

_ instant petition does not violate the

Fourth Amendment either on _ face or

as applied to the Petitioner “in the

instant case. Therefore, no federal

constitutional question is presented

for review by this Court.

-24-

CONCLUSION

For the above and foregoing

reasons, Respondent respectful’y

requests this Court deny the petition

for a writ of certiorari filed on

behalf of the Petitioner, Guy Waller.

Respectfully submitted,

MICHAEL J. BOWERS

Attorney General

JAMES P. GOOGE, JR.

Executive Assistant

Attorney General

0.

irst Assistant Attorney

General

kay rh Attorney General

LEWIS R. SLATON

District Attorney

H. ALLEN MOYE

Assistant Distrct

Attorney

CERTIFICATE OF SERVICE

I, MARY BETH WESTMORELAND, a

member of the bar of the Supreme

Court of the United States and

counsel of record for the Respondent,

hereby certify that in accordance with

the rules of the Supreme Court of the

United States, I have this day served

a true and correct copy of this Brief

in Opposition for the Respondent upon

the Petitioner by depositing three

copies of same in the United States

amil with proper address and adequate

postage thereto to:

Herbert Shafer

432 Delmont Drive, N.E.

Atlanta, Georgia 30305

James K. O'Malley

205 Ross Street

Pittsburgh, Pennsylvania

15119

This Y/ day of October, 1983,