# Opposition — Waller v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0321%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 39 ## Text 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 = ae ; . - : a. 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- he . y - aie . ‘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, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0321%3A03. Public record. Not legal advice.