Respondents Brief — Waller v. Georgia

«Supreme Court, U.S

FILED

Nos, 83-321 & 83-322 FEB 22 j094

ALLA YF

IN THE %

Supreme Court of the United States

OCTOBER TERM, 1983

GUY WALLER,

Petitioner,

STATE OF GEORGLA,

Reavondent.

CLARENCE COLE, é¢ ai.,

Petitioner

v.

STATE OF GEORGIA, :

ésponaen

ON WRITS OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

BRIEF FOR RESPONDENT

Mary Beto WESTMORELAND

Assistant Attorney General

Counsel of Record for

Respondent

Micuakz. J. Bowrnrs

Attorney General

James P. Gooce, JR.

Executive Assistant

Attorney Genera]

Manrrox 0, Gorpox

First Assistant

Attorney General

WriuiaM B. Hitt, Je.

Senior Assistant

Attorney General

Lewis R. Staton

182 State Judicial : wer

40 Capitol Square, §.W. District Attorney

Atlanta, 808384 4H. Attew~ More

(404) ieonal Assistant District Attorney

QUESTIONS PRESENTED

1

Did the trial court properly order the courtroom to be

closed during the hearing on the motion to suppress

based upon provisions of the Georgia statutes on elec-

tronic surveillance?

2.

Did the Supreme Court of Georgia properly conclude

that O.C.G.A. § 16-14-7(f) is constitutional on its face?

3.

Did the Supreme Court of Georgia properly conclude

that there was no requirement that all material seized in

the search in question be suppressed?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.................-.65 i

CUPTRR IGE OI 65 65 cin dies Seco c needs cusssves 1

Pi bs ee oN ee peat Penk eee Prey oe 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED..................:- 2

STATEMENT OF THE CASE................... 2

SUMMARY OF THE ARGUMENT.............. 6

PRASURREOE SE olin VaR Rew eOKse nee be coekipper 7

I, THE TRIAL COURT PROPERLY CLOSED

THE COURTROOM DURING THE HEAR-

ING ON THE MOTION TO SUPPRESS

PRIOR TO TRIAL, «6.0: ciesceciescccvsis. 7

I. THE SUPREME COURT OF GEORGIA

PROPERLY CONCLUDED THAT

0.C.G.A. § 16-14-7(f) DOES NOT

VIOLATE THE TH AMENDMENT

TO THE UNITED STATES CONSTITU-

TION AND PROPERLY CONCLUDED

THAT THERE IS NO UIREMENT

THAT ALL EVIDENCE BE

SUPPRESSED: 20... cccceccesdiccccccoses 21 \

CONCIAIBION 5.0 ccc ccsccsevescscccvemcescceeis 32

CERTIFICATE OF SERVICE...............+-+. 33

8 a 7 |

TABLE OF AUTHORITIES

Page(s)

Cases cited:

Aaron v. Capps, 507 F.2d 685 (5th Cir. 1975)....... 14

Andresen v. Maryland, 427 U.S. 463 (1976)......... 29

Boyd v. LeFevre, 519 F.Supp. 629 (E.D.N.Y. 1981) .12, 15

Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663 (1974)... 0. ccc ccc ec eee eee 26

Carroll v. United States, 267 U.S. 132 (1925)......... 26

Castillo v. Harris, 491 F.Supp. 33 (8.D. N.Y. 1980)... 15

Chambers v. Maroney, 399 U.S. 42 (1970)........... 26

Chimel v. California, 395 U.S. 752 (1969)......... 23, 26

Coolidge v. New Hampshire, 403 U.S. 443 (1971)..... 25

Douglas v. Wainwright, 521 F.Supp. 790

CED; Wie Bs bs etn bi pee wR neu pvieeee’s poker 13

Douglas v. Wainwright, 714 F.2d 1532

CRRA GI, DNs yd og pu aesibs coed bl abecec ls hea os 14

Estes v. Texas, 381 U.S. 532 (1965)... ............. 10

Gannett Co. v. DePasquale, 443 U.S. 368 (1979)..... 11, 13

Gelbard v. United States, 408 U.S. 41 (1972)...4..... 16

Kansas City Star, In re Application of,

666 F.2d 1168 (8th Cir. 1981)................. 16, 18

Lacaze v. United States, 391 F.2d 516 (5th Cir. 1968).. 12

Lowe v. State, 141 Ga. App. 433, 233 8.E.2d 807:

OPP) Sco Spe see sek Ce. 20

Nebraska Press Ass'n. v. Stuart, 427 U.S. 539 (1976)... 16

New York v. Belton, 453 U.S. 454 (1981)............ 26

Oliver, In Re, 383 U.S. 257 (1948)................. 11

* . ye Pap ary’ ts er Bin a4 i vy ee ‘ iy 2

ae ge ee eae PR Py OMT RIPE TE ge Pears Ee :

TABLE OF AUTHORITIES (Continued)

Page(s)

Cases cited (Continued):

Payton v. New York, 445 U.S. 573 (1980)...... 23, 24, 25

Press-Enterprise Co. v. Superior Court, 34 Cr.L.

3019, decided January 18, 1984............ res

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980)... eee cece eee e eee 12, 16

Russello v. United States, __._ U.S. —__.,

a Ce nck 6 v0 Shue 0.0 45:64 c0 owe evees 31

Snyder v. Massachusetts, 291 U.S. 97 (1934)......... 14

Stanford v. Texas, 379 U.S. 476 (1965)......:.... 27, 28

Tezas v. Brown, ___. U.S. ____, 103 8.Ct. 1535

CE Cale <.e'v6 6 tae Coe sib eh cert Lcetves RAR 24, 25

United States ex rel. Bennett v. Rundle,

419 F.2d 599 (3d Cir. 1969)..............44.. 11, 14

United States ex rel. Bruno v. Herold,

. 868 F.2d 187 (2d Cir. 1966)... 22... eee eee ee eee 12

United States v. Bell, 464 F.2d 667 (2d Cir. 1972).... 14

United States v. Cianfrani, 573 F.2d 835

(8d Cir, 1978)........0...eeeees were 13, 16, 17, 18

United States v. Clark, 475 F.2d 240 (2d Cir. 1973)... 11

United States v. Dorfman, 690 F.2d 1230

CT ihe CE AOI oi ok ss Ship SEVER ERE Sn ve POD 18

United States v. Geise, 158 F.Supp. 821

CAD: GI DOs is oss ac as ccRdha cece csc'y cog en 14

United States v. Heldt, 668 F.2d 1238

(D.C. Cir. 1981)............. Luce aes bac Ole 29, 30

United States v. Hernandez, 608 F.2d 741

(9th Cir. 1979)............0.000..- pe seeeeceees 15

iv

ween” | See x ‘ 4 i OB ke coe

7 a, Sys 7 kj lial eh ae Pe ts ow AS panty ty p, . + 7, ve >

x are Fas! We TS ee Tt Z

TABLE OF AUTHORITIES (Continued)

P ge(s)

Cases cited (Continued) :

United States v. Wuagneuz, 683 F.2d 1343

(11th Cir. 1982)..... eke bvbkaPaatdcacareses 29, 30

| Waller v. State, 251 Ga. 124, 303 S.E.2d 437

NG i Bec ce Riiree bs 0 en ble bie 5, 10, 20, 22, 30

Warden v. Hayden, 387 U.S. 294 (1967)....... 23, 24, 26

Western Business Systems, Inc. v. Slaton,

492 F.Supp. 513 (N.D. Ga. 1980)....... 23, 24, 30, 31

Statutes:

ele ee ES? TN Se 2, 3, 8, 9, 19

Re Oe oe coca nck coe b kas 31

es ee buN a ud See bite 2, 23

O.C.G.A. § 16-14-77)... cee cence i, 2, 5, 6, 21, 22

PR k OS es. eink, sausewaee 31

SS I ao civnccis isis kaecewaxt 2

Title III Omnibus Crime Control and Safe Streets

Act, 18 U.S.C. §§ 2510, ef. seg.......... 16, 17, 18, 19

Constitutional Provisions:

pS PT nT oP ee E 2, 12, 16

Fourth AmiemGMeRs,. . 0.0566 ccccvcccscucccces passim

oe ee re ere 2, 5, 7, 10, 12

Pe a ids oo Ue bb0'd <0 nt cha ca ennod 2

Other Authorities:

3 W. Blackstone, Commentaries * 372.............. 13

Evidence in Trials at Common Law .

(Chadbourne Rev. 1976)................. 13

Nos. 83-321 & 83-322

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

GUY WALLER,

Petitioner,

v.

STATE OF GEORGIA,

Respondent.

CLARENCE COLE, et al.,

Petitioners,

v.

STATE OF GEORGIA,

Respondent.

ON WRITS OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

BRIEF FOR RESPONDENT

Pursuant to Rule 34 of the Rules of this Court, the

Respondent in Nos. 83-321 and 83-322 respectfully sub-

mits this joint brief.

OPINION BELOW

The opinion of the Supreme Court of Georgia is report-

ed at 251 Ga. 124, 308 8.E.2d 487 and appears as Appen-

dix A of the joint appendix.

1

2

JURISDICTION

The jurisdiction of this Court rests upon 28 U.S.C.

§ 1257(3). The judgment of the Supreme Court of Geor-

gia was entered on June 1, 1983. Petitioners filed timely

petitions for writs of certiorari which were granted on

November 7, 1983.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the First, Fourth, Sixth and Four-

teenth Amendments to the Constitution of the United

States which are set forth in the joint appendix. This

case’also involves O.C.G.A. §§ 16-11-64(b)(8) and 16-14-

7(a) and (f) which are set out in the joint appendix.

STATEMENT OF THE CASE

On February 9; 1982, the grand jury of Fulton County

indicted the Petitioners in the two instant cases as well

as numerous others on charges of violation of the Georgia

Racketeer Influenced and Corrupt Organizations Act. All

of the defendants entered pleas of not guilty to the

charges.

On June 21, 1982, a trial commenced on the charges

against the Petitioners and other defendants. At the con-

clusion of that trial, the Petitioners in the instant cases

were found guilty of commercial gambling and communi-

cating gambling information. Petitioner Eula Burke was

sentenced to five years probation, and a $10,000 fine on

3

Cole was sentenced to five years with three years to

serve and also received a twelve month probated sen-

tence on a separate charge. Petitioner Thompson was

sentenced to five years with two years to serve and a

$10,000 fine, as well as a twelve month probated sentence

on a separate charge. Petitioner Waller was sentenced to

five years with three years to serve and the balance on

probation and a $20,000 fine with a twelve month pro-

bated sentence being imposed on a separate charge. (R.

200, 207-8).

The facts of the case as presented at trial show that

between June, 1981 and January, 1982, the Petitioners

and others 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. Gam-

bling information was transmitted by electronic means

and stored in a microcomputer maintained by Petitioner

Clarence Cole.

Prior to trial Petitioners filed a motion to suppress evi-

dence based on searches that were conducted prior to the

indictments. On June 14, 1982, the state filed a motion

to close the hearings on the motion to suppress. The state

asserted that the hearing was going to involve evidence

of a sensitive nature and that the litigation on the motion

would of necessity involve the introduction of evidence

which would affect individuals not on trial at that time

and individuals not indicted at that time. A portion of

the information which would be disclosed involved cer-

tain evidence obtained through the use of electronic sur-

veillance. The state sought to close the hearing based on

the prohibition on publication of wiretap evidence set

forth in O.C.G.A. § 16-11-64(b)(8). In order to allow the

4

at da

4

state to utilize the same information in subsequent prose-

cutions against other individuals and to protect the pri-

vacy rights of those not on trial, the state sought to close

the motion hearings. The trial court concluded that if

the evidence was going to be offered at the trial of other

offenders, the presentation of the evidence at the hearing

on the motion to suppress in the instant cases would

amount to publication and would taint the evidence

under the Georgia statute. (S8.T. 6-8).

When the requests were made, Attorney Charles Smith,

counsel for Petitioner Clarence Cole and other defen-

dants, agreed with the observation made by the state

and concurred with the request, insofar as the request

extended only to the hearings on the motion to suppress.'

Attorney Herbert Shafer, representing the remainder of

the defendants at that time, opposed the closure motion

and asserted that he would insist on the right to an open

trial. (S.T. 11).

The trial court granted the motion to close the pro-

ceedings only as to the hearing on the motion to suppress.

Attorney Shafer sought to have certain individuals re-

main in the courtroom, but the trial court ruled that the

statute was very specific, “‘[aJnd I think that means every-

body must go except the defendants, counsel, necessary

witnesses of course who appear, and the officers of the

court.” (8.T. 14). Attorney Smith interposed an objec-

tion to Attorney Shafer’s wife remaining in the court-

room, although the state did not oppose such request.

The trial court then granted the motion to close the pro-

ceedings and excluded all individuals except those previ-

ously enumerated by the court.

en ay sy Hin would urge that Petitioner Cole is from

aR nei tone

5

After the trial and convictions, the Petitioners filed a

direct appeal to the Supreme Court of Georgia raising

numerous allegations. In particular, the Petitioners chal-

lenged the closure of the courtroom and the constitu-

tionality of O.C.G.A. § 16-14-7(f). That court affirmed

the convictions and sentences, in particular, concluding

that the code section being challenged was constitutional

on its face and did not violate the Fourth Amendment.

The court also concluded that there was no requirement

that the evidence that had been lawfully seized be sup-

pressed. The court concluded that the Sixth Amendment

right to a public trial was not violated by the closure of

the courtroom, noting that the trial court exercised its

inherent power to preserve order in the courtroom, to

protect the rights of parties and witnesses and to further

the administration of justice. Waller v. State, 251 Ga. 124, —

303 8.E.2d 437, 441 (1983). The motion for rehearing

was denied by that court on June 18, 1983. Petitioner

then filed two separate petitions for writs of certiorari in

this Court requesting that this Court review the decision

by the Supreme Court of Georgia. On November 7, 1983,

this Court granted the petitions for writs of certiorari

and consolidated the two cases. ! |

F ; ’

4 } os needs eis ve ") ; , ‘

ip), ere ee Fe Wil eee ome y WO, Tae, A ary, Me ie ee AD

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-

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i Pp nid

6

SUMMARY OF THE ARGUMENT

Under the facts of the instant case, the trial court’s

closure of the courtroom during the hearing on the motion

to suppress did not violate Petitioners’ right to a public

trial. The closure was limited solely to the motion to

suppress hearing which is a pretrial proceeding and not

a part of the actual trial itself and specifically did not

apply the ruling to the jury trial portion of the proceed- |

ings. The state had compelling interests, which were jus-

tifiable under the circumstances, in having the courtroom

closed based on the statutory requirement that evidence

obtained as a result of electronic surveillance not be sub-

ject to publication. In order to allow the state to seek

subsequent prosecutions or indictments, it was necessary

to close the courtroom to prevent a possible publication

of such material. Such closure also served to protect the

privacy rights of those individuals not then on trial or

not under indictment at the time of the hearing. The

trial court was within its authority to preserve order and

decorum in the courtroom and to protect the rights of

the parties involved in the case. Thus, the right of the

Petitioners to a public trial was properly balanced against

the state’s overriding concerns regarding the wiretap evi-

dence. Furthermore, closure was properly limited so that

only the motion to suppress hearing was closed. There-

fore, the instant closure did not constitute a violation, of

the right to a public trial.

The provisions of O.C.G.A. § 16-14-7(f) do not violate

the Fourth Amendment to the United States Constitu-

tion. The statutory provision provides for forfeiture under

certain circumstances, The statute provides for restric-

tions which brings the statute within the parameters of

the Fourth Amendment by requiring that the seizure be_

7

made pursuant to a lawful arrest, search or inspection

and also by requiring that the law enforcement officer

have probable cause to believe that the property in ques-

tion is subject to forfeiture. Thus, by definition the stat-

ute complies with the Fourth Amendment.

There was no requirement that the evidence not sup-

pressed be excluded at the time ‘of trial. The search in

question was not a general search' as suggested by the

Petitioners, but was made pursuant to valid statutory

procedures and a valid warrant. The mere fact that offi-

cers may have seized evidence which was subsequently

returned to the Petitioners does not render the entire

search and all evidence seized pursuant to that search

inadmissible and subject to the exclusionary rule. No

such wholesale application of the exclusionary rule should

be made in instances in which officers act pursuant to

valid warrants.

ARGUMENT

I. THE TRIAL COURT PROPERLY CLOSED

THE COURTROOM DURING THE HEARING

ON THE MOTION TO SUPPRESS PRIOR TO

TRIAL.

The first issue presented for review by this Court is a

challenge by the Petitioners to the trial court’s closure of

the courtroom during the hearing on the motion to sup-

press. Petitioners have asserted that the closure by the

trial court violated their right to a public trial under the

Sixth Amendment to the United States Constitution.

At the beginning of the hearing on the motion to sup-

press, the state reasserted the former motion previously

made for closure, stating that it would be necessary dur-

ing the hearing on the motion to utilize evidence which

8

could involve a reasonable expectation of privacy on the

part of persons who were not presently on trial. The

motion was specifically made based on the provisions of

0.C.G.A. § 16-11-64(b)(8) concerning publication of

wiretap information and subsequent use of that informa-

tion in other prosecutions. That code section specifically

provides the following:

Any publication of the information or evidence ob-

tained under a warrant issued hereunder other than

that necessary and essential to the preparation of and

actual prosecution for 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 inadmissible in any criminal pro-

secution.

Id. The state asserted that the evidence to be presented

could affect persons other than the defendants on trial

and could involve some persons who had not even been

indicted. The trial court concluded that the presentation

of such evidence would amount to publication under the

statute.

Attorney Smith, representing Petitioner Clarence Cole

concurred with the request insofar as it extended to the

motion to suppress. Attorney Shafer opposed the motion,

particularly stating that he felt that there had already

been unnecessary publication of the material. The court

concluded that the actual trial of the case would present a

different set of circumstances, but as the request was

only to the motion hearing, it would be granted. Attorney

Shafer requested that other persons be allowed to remain

in the courtroom to assist him, to which Attorney Smith

interposed an objection. The court ruled that the court-

room would be closed during the hearing on the motion to

suppress so as to exclude all others except’ witnesses,

et

Msc etl) SN UES. lr Lee ee a Me ene

9

necessary court personnel, the parties and their lawyers.

(S.T. 12).

The testimony at the hearing on the motion to suppress

focused on the electronic surveillance that was conducted.

Various persons testified concerning the obtaining of the

warrants to conduct the electronic surveillance and

various officers testified concerning the procedures that

were utilized when monitoring telephone calls. Certain

tapes of telephone calls that were obtained by way of

wiretaps were played at the hearing on the motion to

suppress.

On direct appeal, the Supreme Court of Georgia con-

sidered the allegations challenging the closing of the

courtroom. The court concluded the following:

In the hearing here, information was revealed which

was potentially harmful to others, would tend to vio-

late ee of others, and might prejudice other

potential defendants. Under these circumstances,

the court balanced [Petitioners’] rights to a public

hearing on the motion against the privacy rights of

others and closed the hearing. The court 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 administra-

tion of justice.”’ Lowe v. State, 141 Ga. App. 433, 435,

233 S.E.2d 807 (1977). We find that [Petitioners’]

Sixth Amendment right to a public trial was not vio-

lated. There is some question whether state or federal

law would have required that the wiretap informa-

tion be revealed in a closed courtroom. OCGA

16-11-64(b)(8) (Code Ann. § 26-3004) ; 18 U.S.C.A.

2517. We need not reach this question since the

pater ppg a name iageliie, cement. er meaty

eet Baga lel | Kon einen ti

‘age Corp. v. Lumpkin, supra. This argument has no

merit si i question occurred before

since the hearing in

10

that case was decided and before the procedural

requirements set forth took effect.

Waller v. State, supra, 303 8.E.2d at 441.

The Sixth Amendment to the United States Constitu-

tion provides for an accused’s right to a public trial. This

right has been construed by numerous courts on many

occasions. This Court has stated the following:

Essentially, the public trial guarantee embodies a

view of human nature, true as a general rule, that

judges, lawyers, witnesses, and jurors will perform

their respective functions more responsibly in an

open court than in secret proceedings (cite omitted).

A fair trial is the objective, and “public trial’’ is an

institutional safeguard for obtaining it.

Thus, the right of ‘‘public trial” is not one belonging

to the public, but one peaens to the accused, and

inhering in the institutional process by which justice

is administered. Obviously, the public-trial guarantee

is not violated if an individual member of the public

cannot gain admittance to a courtroom because there

are not available seats. a _—— will already

have been met, for the “ will be present in the

form of those persons w aid gain admission. Even

the actual <e per of ge public is not guaranteed. A

public.trial implies only that the court must be open

to those who wish to come, sit in the available seats,

conduct themselves with decorum, and observe the

trial process.

Estes v. Texas, 381 U.S. 532, 588-89 (1965) (Harlan, J.,

concurring).

It has been recognized by the courts that the Sixth

Amendment reflects traditional distrust for secret trials

and is an expression of the belief that the “knowledge that

every criminal trial is subject to contemporaneous review

in the forum of public opinion is an effective restraint on

11

possible abuse of judicial power.”’ In Re Oliver, 333 U.S.

257, 270 (1948) (Footnote omitted).

The right to a public trial has been applied to various

phases of the trial process itself. In United States ex rel.

Bennett v. Rundle, 419 F.2d 599 (3d Cir. 1969), the court

applied the right to a public trial to a Jackson v. Denno

hearing, concluding that such a hearing was part of the

trial and was held after the jury had been sequestered;

therefore, the procedures fell within the constitutional

guarantee to a public triak-The right to a public trial

has been applied to contempt proceedings, even though

they are considered to be summary in nature. Jn Re

Oliver, supra. Recently, this Court has applied the right

to a public trial to voir dire proceedings. Press-Enterprise

Co. v. Superior Court, 34 Cr.L. 3019, decided January 18,

1984.

The Second Circuit Court of Appeals has applied the

right to a public trial to a suppression hearing when the

defendant and the public were excluded from the entire

suppression hearing. United States v. Clark, 475 F.2d 240

(2d Cir. 1973). Chief Justice Burger, however, has noted,

“(bly definition, a hearing on a motion to suppress evi-

dence is not a trial; it is a pretrial hearing.” Gannett Co. v.

DePasquale, 443 U.S. 368, 394 (1979) (Burger, C.J., con-

curring). In that same concurrence, Chief Justice Burger

noted that at common law the courts recognized that the

timing of a proceeding was likely to be critical. ““To make

public the evidence developed in a motion to suppress

evidence, . . . would, so long as the exclusionary rule is not

modified, introduce a new dimension to the problem of

conducting fair trials.” Jd. at 395. Therefore, the fact

that the closure in the instant case occurred at a hearing

on a motion to suppress is at least a factor to be considered

12

in determining whether there has been a denial of the

right to a public trial.

The right to a public trial has been held not to be limit-

less by various courts. Lacaze v. United States, 391 F.2d

516 (5th Cir. 1968). The Second Circuit Court of Appeals

has recognized that the constitutional right to a public

trial is subject to the court’s power to preserve fairness

and orderliness of the proceedings of the court. United

States ex rel. Bruno v. Herold, 368 F.2d 187 (2d Cir. 1966).

It has also been recognized that the right is not absolute

and the trial court may in its discretion exclude the public

for a part or all of the criminal proceedings where it is

necessary to preserve order, protect witnesses or maintain

confidentiality of certain information. Boyd v. LeFevre,

519 F.Supp. 629 (E.D.N.Y. 1981).

Recently this Court has examined the right to a public

trial from a First Amendment perspective and held,

“closed proceedings, although not absolutely precluded,

must be rare and only for cause shown that outweighs

the value of openness.”” Press-Enterprise Co., supra, 34

Cr.L. at 3021. The Court also went on to note the follow-

ing:

We have previously noted that in some limited cir-

cumstances, closure may be warranted. Thus a trial

judge may, “in the interest of the fair administration

of justice, impose reasonable limitations on access to

a trial.”

Id. at 3022 n. 10, quoting Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555, 581 n. 18.

The cases teach us that in order to make a complete

evaluation of an allegation concerning the denial of a

right to a public trial, it is first necessary to examine the

underlying purposes for this right. The Sixth Amendment

13

public trial provision is derived from a common law policy

in favor of public proceedings. An initial common law

purpose for the public trial right was to curb a secret bias

or partiality on the part of a judge. 3 W. Blackstone,

Commentaries * 372. Later authorities noted that pub-

licity would discourage witnesses from perjury and also

might assist in developing persons who otherwise might

not know that they possessed information relevant to the

trial. 6 J. Wigmore, Evidence in Trials at Common Law

§ 1834 at 435 (Chadbourne Rev. 1976). See also United

States v. Cianfrani, 573 F.2d 835, 848 (3d Cir. 1978).

This Court in Gannett Co., supra, specifically reviewed

the interests protected by the public trial right:

Openness in court proceedings may improve the qual-

ity of testimony, induce unknown witnesses to come

forward — relevant testimony, cause all trial par-

ticipants to perform their duties more conscien-

tiously, and generally give the public an opportunity

to observe the judicial system.

Id. at 383. Other courts have noted that the right pro-

vides protection from’ secret proceedings, assists in the

likelihood that more truthful testimony would result and

serves to give notice to the world of details of the case.

Douglas v. Wainwright, 521 F.Supp. 790, 795 (M.D. Fla.

1981). Therefore, there are strong societal interests in

public trials; however, there are strong societal interests

in other constitutional guarantees as well. Gannett Co.,

supra at 383.

In evaluating a particular case, it is essential to con-

sider whether the procedure in question meets the pur-

poses of the guarantee to the right to a public trial. ‘In

particular the court must analyze, in light of those pur-

poses of the public trial guarantee which the defendant

5 PY Se Dre

ee ere a a eS NRT

‘

‘

14

alleges were undermined . . . the scope and practical im-

pact of the partial closure... and the strength of the

reason for the closure.”” Douglas v. Wainwright, 714 F.2d

1532, 1540 (llth Cir. 1983). Thus, whether a particular

proceeding is sufficiently ‘‘public’” to meet constitutional

standards, turns on the particular circumstances of the

case. Aaron v. Capps, 507 F.2d 685, 687 (5th Cir. 1975).

“{Ajlthough the Constitutional right of public trial is a

substantial one, the term ‘public’ is a relative one, and

its construction depends upon various conditions and cir-

cumstances... .”’ Douglas v. Wainwright, supra at 1540

n. 5, quoting United States v. Geise, 158 F.Supp. 821, 824

(D. Alaska 1958). Thus, this Court must consider the

circumstances in the instant case, including the purposes

of the right to a public trial and the specific reasons for

closure in the instant case.

Courts have recognized governmental interests in clo-

sure of proceedings under various circumstances. It has

been recognized that states and the government have

interests to protect as well as do individuals. In United

States ex rel. Bennett v. Rundle, supra, the court recog-

nized that the state was free to regulate the procedures

of its courts in accordance with its own conception of

policy and fairness. Jd. at 613, citing Snyder ». Massa-

chusetts, 291 U.S. 97, 105 (1934). The Second Circuit

Court of Appeals has recognized the government's inter-

ests in protecting a hijacker profile from disclosure. Thus,

in United States v. Bell, 464 F.2d 667 (2d Cir. 1972), the

court upheld the exclusion of the defendant and the

public from a limited portion of a suppression hearing.

The court found that the protection of the air traveling

public was a sufficient justification for the limited exclu-

sion of the public from that portion of the trial.

15

In United States v. Hernandez, 608 F.2d 741 (9th Cir.

1979), the government requested that spectators be ex-

cluded during the testimony of an informant. The re-

quest was based on concerns of danger to the witness and

his family. The request was granted over the defendant’s

objection. The Ninth Circuit Court of Appeals concluded

that the exclusionary order was appropriate under the

circumstances, noting that the right to a public trial did

not preclude @ limited exclusion when there was a dem-

onstrated need to protect a witness. The court also noted

that the right to a public trial was subject to the trial

court’s power to keep order in the courtroom. The court

expressed a concern that there be an accommodation of

the individual’s right to a public trial and the societal

interest that might justify the closing of the courtroom

to the public. Jd. at 747.

Other courts have recognized the government’s interest

in protecting witnesses as sufficient to justify closure. In

Castillo v. Harris, 491 F.Supp. 33 (8.D. N.Y. 1980), the

courtroom was sealed during the testimony of an under-

cover police officer who was still actively engaged in un-

dercover activities. Under those circumstances, the court

found a sufficient justification presented on behalf of the

state for the closure in question. In Boyd v. LeFevre,

supra, the court recognized that the right to a public

trial was not absolute and found that if necessary to pre-

serve order, protect witnesses or maintain the confiden-

tiality of certain information, closure might be justified.

The Eighth Circuit Court of Appeals held that privacy

of others was also @ concern which might justify closure.

16

gressional concern under those circumstances. Jn Re

Application of Kansas City Star, 666 F.2d 1168 (8th

Cir. 1981).

Finally, this Court has addressed the public trial right

in light of the First Amendment guarantees on numerous

occasions. In Nebraska Press Ass’n. v. Stuart, 427 U.S.

539 (1976), the Court balanced the right of a trial by an

impartial jury against public trial considerations. A simi-

lar analysis was conducted in Richmond Newspapers, Inc.

v. Virginia, 448 U.S. 555 (1980).

A pertinent factor in the instant case is the type of

evidence that was to be presented during the hearing on

the motion to suppress. The state was concerned with

evidence obtained as the result of electronic surveillance.

This concern also has arisen im federal cases involving

Title III of the Omnibus Crime Control and Safe Streets

Act of 1968, 18 U.S.C. §§ 2510 et. seq. In United States

v. Cianfrani, supra, the court was specifically concerned

with the provisions of Title III concerning disclosure of

information obtained through interceptions by way of

electronic surveillance. The court noted that Title III

was a statute designed to regulate the interception and

disclosure of wire and oral communications. The Act has

purposes of protecting the privacy of such communica-

tions and setting forth a uniform basis under which the

interception of such communications could be authorized.

Id. at 855. The legislative history of Title III makes it

quite clear that ‘‘the protection of privacy was an over-

riding congressional concern’’ of the Act. Gelbard v. United

States, 408 U.S. 41, 48 (1972).

Under Title III, there are strict provisions prohibiting

the use of the contents of communications in trials or

other proceedings if the disclosure would violate the Act.

17

In evaluating Title III in light of the circumstances of

the case, the court in United States v. Cianfrani extensively

examined the legislative history of the statute which

“emphasizes the concern of its drafters that the Act pre-

serve as much as could be preserved of the privacy of

communications, consistent with the legitimate law en-

forcement need that the statute also sought to effectu-

ate.”’ Id. at 856. The court went on to note that Congress

obviously intended to regulate strictly the disclosure of

such communications, “limiting the public revelation of

even interceptions obtained in accordance with the Act

to certain narrowly defined circumstances.” Jd.

In examining the circumstances of that case, the Third

Circuit Court of Appeals concluded that protection of the

privacy of communications was ‘ital to society.

We depend upon the free interchange of ideas and

information. And we are dedicated to the proposi-

tion that each individual should be free from un-

18

ITI and preserve the strength of that statute’s pro-

visions governing disclosure.

United States v. Cianfrani, supra, 573 F.2d at 856-7. Thus,

the court found a limited exception to the right of public

access which the court concluded was required under the

Act.

The Eighth Circuit Court of Appeals has also addressed

the question of public access to wiretap and electronic

surveillance information. That court noted that Title III

had a dual purpose of ‘“‘protecting the privacy of wire

and oral communications, and (2) delineating on a uni-

form basis the circumstances and conditions under which

interception of wire and oral communications may be

authorized.”” In Re Application of Kansas City Star,

supra, 666 F.2d at 1174. The court found that the gov-

ernment’s investigation and the protection of privacy

were overriding congressional concerns under Title III.

The court then concluded that under the circumstances,

the privacy of others should not be unduly invaded. Jd.

at 1175.

The Seventh Circuit Court of Appeals also considered

wiretap information in United States v. Dorfman, 690

F.2d 1230 (7th Cir. 1982). The defendants were charged

with various federal crimes and the government had been

engaged in wideranging wiretaps. A motion to suppress

was filed on behalf of the defendants and the district

judge ordered that the exhibits be sealed. Various news-

papers moved to have the exhibits unsealed. The judge

sealed the exhibit to protect the defendants’ right of pri-

vacy and the right to a fair trial. The court noted that

the strict prohibition set forth against the disclosure of |

unlawfully obtained wiretap evidence would be under-

mined by disclosure of wiretap evidence at a suppression

¢ 4 as

ile P ts) 2 4

Pat ye) wie ae yy Pees et ae

19

hearing before the court ruled on its lawfulness. Jd.

Thus, it can be seen that the courts have maintained

consistently that while a defendant does have a right to

a public trial, there may be certain circumstances under

which the government’s or state’s interests may over-

ride the right to a public trial for limited purposes and for

a limited period. Thus, the right of the state to protect

the procedure of the courts, the confidentiality of in-

formants, to protect witnesses and the privacy of others,

have all been recognized by various courts as justifica-

tion for at least partial closure. In particular, cases in

which wiretap evidemre is to be utilized have recognized

a statutory obligation for closure under Title III.

In examining the circumstances in the instant case,

Respondent asserts that the facts clearly justified the

closure in question. The state had an interest in protect-

ing the privacy of persons not on trial as well as pro-

tecting its ability to subsequently bring to trial those

persons who had not been indicted or who were not pres-

ently on trial. Thus, the state was faced with the prohi-

bitions of 0.C.G.A. § 16-11-64(b)(8) on publication of

wiretap information and the possibility that an open

hearing on the motion to suppress could prevent future

trials of individuals involved in the electronic surveillance.

There was also the possibility of the unwarranted inva-

sion of the privacy of others by the opening of the hear-

ing on the motion to suppress. Clearly, the state statute

has the same concerns as does the federal statute and as

the concerns set forth in Title III of the Omnibus Crime

Control and Safe Streets Act. An overriding concern is

privacy of individuals not on trial and the unwarranted

intrusion into that privacy by the unnecessary publica-

tion of electronic surveillance materials. Thus, the state

a

did have a justification for requesting the closure of the

hearing on the motion to suppress.

The trial court had the obligation of balancing the pri-

vacy rights of others and the public trial right of the

Petitioners in the instant case. As noted by the Supreme

Court of Georgia, the trial court exercised its inherent

power “‘to preserve order and decorum in the courtroom,

to protect the rights of parties and witnesses, and gen-

erally to further the administration of justice.’’ Waller v.

State, supra at 441 quoting Lowe v. State, 141 Ga. App.

433, 235, 233 S.E.2d 807 (1977). As the state did have

an overriding societal concern in mind when requesting

the closure, Respondent urges this Court to conclude

that Petitioners’ public trial right was not violated by

the closure in the instant case.

Furthermore, the closure in the instant case was not

unduly extensive. Although the trial court did close the

entire hearing on the motion to suppress, the court spe-

cifically did not close any portion of the actual trial itself.

Witnesses were available and testified at the trial of the

case who had previously testified at the hearing on the

motion to suppress. Therefore, all these witnesses were

subject to public scrutiny when they testified and the

purpose of inhibiting perjury was met by this later tes-

timony. This later testimony also met the purpose of the

public trial guarantee of discovering those persons who

might have information about the case.

Respondent asserts that as the stated purposes behind

the guarantee to a public trial were met in the instant

case and because the state had an overriding concern in ee

requesting the closure and, finally, because the trial court f

properly balanced the various concerns, the Petitioners’ :

right to a public trial was not violated by the closure of ae

21

the hearing on the motion to suppress. Therefore, this

Court should affirm the judgment of the Supreme Court

of Georgia as to this issue.

Il. THE SUPREME COURT OF GEORGIA PROP-

ERLY CONCLUDED THAT 0.C.G.A. § 16-14

7(f) DOES NOT VIOLATE THE FOURTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION AND PROPERLY CON-

CLUDED THAT THERE IS NO REQUIRE-

MENT THAT ALL EVIDENCE SEIZED BE

SUPPRESSED.

A. FACIAL VALIDITY OF THE STATUTE.

Petitions in the instant case have challenged the pro-

visions of O.C.G.A. § 16-14-7(f) setting forth the forfei-

and Corrupt Organizations Act. In particular, the stat-

E

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Code section, the date and place of seizure. ‘

22

section, asserting that it is facially invalid.’

Respondent asserts that the statute in question fully

complies with the requirements of the Fourth Amend-

ment and that the search in question was proper and

conformed to the Fourth Amendment requirements. The

Supreme Court of Georgia considered the challenge to

the facial validity of the statute and held the following:

A seizure under this section is allowed only in care-

fully prescribed circumstances. The seizure must be

incident to a lawful arrest, search or ry 1214 and

the officer must have probable cause to believe that

the px rh is subject to forfeiture or that the prop-

erty will be lost or destroyed if not seized. There is

no Fourth Amendment problem with the seizure of

the fruits of a lawful search or inspection. The stat-

ute on its face provides that the search or see

must be lawful. This requires that the search be pur-

suant to a warrant, incident to a lawful arrest, or in

the presence of other exigent circumstances, which

would render the search or inspection “lawful.” By

definition, therefore, the statute complies with the

Fourth Amendment.

Waller v. State, supra, 303 8.E.2d at 440. The court went

on to note that “seizure of contraband, evidence, or

i

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5

f

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23

violate the due process clause of the Fourth Amendment

even though there has been no notice and hearing.” Jd.

The statute in question provides four conditions prece-

dent to the seizure of property for RICO proceedings. The

first requirement set forth in the statute is that the seizure

be made by a law enforcement officer authorized to en-

force the laws of this State. This provision clearly com-

ports with the requirements of the Fourth Amendment.

The second requirement set forth in this statute is that

the seizure be made incident to a lawful arrest, search or

inspection. The designation of the search or inspection as

“lawful” clearly complies with the Fourth Amendment

requirements. Thus, before any seizure could be made

under this statute, the officer must be proceeding under

a lawful search warrant, be conducting a search pursuant

to a lawful arrest or conducting a search authorized by

certain exigent circumstances recognized by this Court

as justifying a warrantless search. See Chimel v. Cali-

fornia, 395 U.S. 752 (1969); Warden v. Hayden, 387 U.S.

294 (1967); Payton v. New York, 445 U.S. 573 (1980).

The third requirement set forth by the statute is that

the officer have probable cause to believe that the prop-

erty being seized is subject to forfeiture as provided in

O.C.G.A. § 16-14-7(a). The code section provides, “all

24

F.Supp. 513 (N.D.Ga. 1980).

This third requirement, rather than giving officers un-

bridled discretion, merely is a codification of the plain

view doctrine as endorsed by this Court as recently as

the decision in Texas v. Brown, ___. U.S. — _, 103 S.Ct.

1535 (1983). In that case, this Court stated the following:

As these cases indicate, “plain view” provides grounds

for seizure of an item when an officer’s access to an

object has some prior justification under the Fourth

Amendment (footnote omitted). “Plain view’’ is per-

haps better understood, therefore, not as an inde-

pendent “‘exception” to the warrant clause, but

simply as an extension of whatever the prior justi-

fication for an officer’s ‘‘access to an object’’ may be.

Id., 103 S.Ct. at 1540-41. Therefore, officers may observe

an object while executing a search warrant, or, seize an

item acting pursuant to some other exception to the war-

rant clause. See, e.g., Warden v. Hayden, supra. There are

circumstances under which officers may need no justifi-

cation under the Fourth Amendment for their access to

the item, as when the property is left in a public place.

See Payton v. New York, supra.

The same principles that apply in a normal plain view

situation also would apply under the circumstances of a

search and subsequent seizure for forfeiture under the

RICO statute. The theory behind the plain view doctrine

is that once an officer has observed an object in plain

view, the remaining interests of the owner in the object

are merely those of possession and ownership. Tezas v.

Brown, supra, 103 S.Ct. at 1541. The doctrine also “re-

fact that requiring police to obtain a warrant

25

that might involve danger to the police and public.” Jd.,

citing Coolidge v. New Hampshire, 403 U.S. 443, 468

(1971). Therefore, this Court has recognized that “in

light of the private and governmental interests . . . our

decisions have come to reflect the rule that if, while law-

fully engaged in an activity in a particular place officers

perceive & suspicious object, they may seize it immedi-

ately.” Texas v. Brown, supra, 103 8.Ct. at 1541. This is

merely an application of the requirement of reasonable-

ness under the Fourth Amendment to the law governing

seizures of property.

It can thus be seen that the third requirement of the

statute on forfeiture is merely a codification of the plain

view doctrine as set forth by this Court. Once the offi-

cers are in the position to be conducting a lawful search

as outlined under the second requirement of this stat-

ute, the principles of ‘‘plain view”’ allow the officers to

seize evidence that they come across during the course

of their search for the specified items. The specification

by the statute in question allowing the officers to deter-

mine if the property is subject to forfeiture is no differ-

ent from a traditional plain view application in which

the officers determine if an item is contraband or is in-

criminating in some evidentiary fashion. Therefore, this

statute clearly does not exceed permissible Fourth Amend-

ment parameters.

This Court has recognized that “the seizure of prop-

erty in plain view involves no invasion of privacy and is

presumptively reasonable, assuming that there is prob-

able cause to associate the property with criminal ac-

tivity.”” Payton v. New York, supra, 445 U.S. at 587. Items

subject to forfeiture may be dealt with in a fashion simi-

lar to contraband, evidence or weapons under the circum-

26

stances previously described. See Calero-Toledo v. Pearson

Yacht Leasing Co., 416 U.S. 663, 679 (1974). Such seizure,

even without prior notice and a hearing, does not offend

due process in certain specified circumstances, including

the necessity to secure governmental or societal interests.

Id. Therefore, an officer conducting an otherwise lawful

search, as under a search warrant in the instant case,

may seize contraband, evidence, weapons or items sub-

ject to forfeiture under the prescribed circumstances even

though these items are not specifically listed in the search

warrant.

The statute in question sets out a fourth requirement

for the seizure of property. Under the fourth requirement

the officer must also have probable cause to believe that

the property will be lost or destroyed if not seized. This

requirement is simply a codification of the ‘exigent cir-

cumstances” requirements recognized by this Court in

numerous settings. This Court has recognized this prin-

ciple in creating the automobile exception in Carroll v.

United States, 267 U.S. 132 (1925), which was subse-

quently followed in Chambers v. Maroney, 399 U.S. 42

(1970). The exigent circumstances exception has also

been recognized in “hot pursuit” situations as set forth

in Warden v. Hayden, supra. The search incident to arrest

exception has also been recognized by this Court in Chimel

v. California, supra and New York v. Belton, 453 U.S. 454

(1981).

An examination of the statute as a whole and the re-

quirements set forth in the statute show that, rather than

granting unbridled discretion to police officers or being

an overbroad provision for seizure, the statute merely

codifies Fourth Amendment principles set forth by this

Court in numerous cases. The four requirements all fall

27

within the parameters of the Fourth Amendment to the

United States Constitution and the decisions previously

set forth by this Court. The search in the instant case

met the requirements of the statute as it was conducted

pursuant to a lawful search warrant,’ was made by offi-

cers authorized to enforce the penal laws of this state,

the officers had probable cause to believe that the property

in question would be subject to forfeiture and the officers

had probable cause to believe that the property would be

lost or destroyed if not seized as much of the evidence

was in the nature of papers and documents readily de-

stroyed. Therefore, Respondent submits that the statute

in question is constitujional on its face and the search

conducted pursuant to the warrant and under this stat-

ute was lawful.

B. THE NATURE OF THE SEARCH CON-

DUCTED.

In addition to the challenge to the statute itself, Peti-

tioners have asserted that all evidence seized should have

been suppressed as the search was in the form of a “gen-

eral” search prohibited by the decisions of this court.

Petitioners primarily rely upon this Court’s decision in

Stanford v. Texas, 379 U.S. 476 (1965) for this proposi-

tion. Respondent asserts that as the searches conducted

were lawful and made pursuant to a valid search war-

rant, the mere fact that certain of the evidence was re-

turned to the Petitioner does not render the entié search

sel tor nrebesbtoratian of the ectebion of tn toad eaitana eo

mand for a consideration of

Hl

ae

i

#

28

and seizure invalid.‘

In Stanford v. Texas, supra, a warrant was issued under

a particular Texas statute which the Court noted was “‘a

sweeping and many-faceted law which, among other

things, outlaws the Communist Party and creates vari-

ous individual criminal offenses. .. .’’ Jd. at 477. A war-

rant was obtained under this statute and four hours were

s * gathering up over half of the books found in the

he ue. Officers also took possession of private documents

and papers, but did not find any records of the Commu-.

nist Party or party lists and dues payments. Jd. at 480.

This Court concluded that the search was invalid “for

we think it is clear that this warrant was of a kind which

it was the purpose of the Fourth Amendment to forbid —

a general warrant.’’ Jd. Thus, the decision focused on the

nature of the warrant itself in addition to the nature of

the search conducted.

The Court concluded that the requirement of particu-

larity for a warrant was to be scrupulously adhered to

when the things to be seized were books and the basis

for the seizure was the ideas contained in the books. Jd.

at 485. As the Court noted, in that case no contraband

of any kind was ordered to be seized, but merely literary

material concerning the Communist Party. ‘The indis-

criminate sweep of that language is constitutionally in-

tr - but cot Gat Oe odbee oui

was

of per se. (8. - 630).

29

Court, the Petitioners specifically stated, ‘“The search

warrant issued here was not a general warrant on its face.

The things to be discovered were described with particu-

larity.”’ (Petitions for writs of certiorari at 14). Thus, the

warrant itself is not called into question. The only issue

presented is whether the fact that the officers seized

items, allegedly vutside the warrant, based on the for-

feiture provisions of the RICO statute, would render he

search and the warrant invalid.

The Eleventh Circuit Court of Appeals addressed some-

what similar concerns in United States v. Wuagneuz, 683

F.2d 1343 (11th Cir. 1982). In that case, the court noted

the following:

At the same time, the Supreme Court has recognized

that effective investigation of complex white-collar

crimes may require the assembly of a “‘paper puzzle”

from a large number of seemingly innocuous pieces

of individual evidence: ‘“The complexity of an illegal

scheme ma may not be used as @ shield to avoid detec-

tion when the State has demonstrated probable cause

to believe that a crime has been committed and err lm

able cause to believe that evidence of ~ crime is in

the suspect’s possession.”

Id. at 1349, quoting Andresen v. Maryland, 427 U.S. 463,

481 n. 10 (1976). The Eleventh Circuit Court of Appeals

went on to note that the magnitude of the search by it-

self would be insufficient to establish a constitutionalvio- _ F

lation. Jd. at 1352. The relevant inquiry was whether |

the search and seizure in question was reasonable under

the circumstances.

All circumstances of the search and seizure should be |

considered, not solely the scope of the search. See United

States v. Heldt, 668 F.2d 1238, 1254 (D.C. Cir. 1981). In

United States v. Heldt, the court recognized that a fla-

30

grant disregard for the limitations of the warrant could

possibly transform the search into a general search. In

that case the court noted that there were some items

seized outside the warrant, but there was not such a

flagrant disregard for the terms of the warrant which

would justify the drastic remedy of total suppression. Jd.

at 1259. The court also noted that the plain view doc-

trine allowed the officers to go outside the literal words

of the warrant. Jd. at 1266. The Eleventh Circuit Court

of Appeals also noted that absent a flagrant disregard for

the terms of the warrant, seizure of items outside the

scope of the warrant would not affect the admissibility

of items properly seized. United States v. Wuagneuz,

supra at 1353.

As noted by the Supreme Court of Georgia, “there is

no requirement that where evidence has been lawfully

seized it must be suppressed if officers unlawfully seized

other material, unless the unlawfully seized evidence led

to discovery of the evidence which was admitted.”” Waller

v. State, supra, 303 8.E.2d at 440. There simply is no

question in the instant case of derivative evidence, there-

fore, this Court should not extend thé exclusionary rule

t» suppress all evidence seized in the instant case.

A further concern, in this case involves the type of

crime in question as well as the type of seizure involved,

procedures under this statute are governed by the Geor-

gia Civil Practice Act. Under this statute, all personal

property realized through or derived from organized

crime may be seized and subject to forfeiture. Western

Business Systems Inc. v. supra. This forfeiture

provision arises under a specified statute designed fc

: . Pavee

3l

the particular purpose of inhibiting organized crime. In

enacting the RICO statute, the General Assembly of

Georgia established the following:

The General Assembly declares that the intent of

this chapter is to impose sanctions against this sub-

version of the economy by organized criminal ele-

ments and provide compensation to private persons

injured thereby. It is not the intent of the ral

Assembly that isolated incidents of misdemeanor

conduct be prosecuted under this chapter but only

an interrelated pattern of criminal ree oe

motive or effect of which is to derive 3 gegen

This chapter shall be construed to further that Exe

O.C.G.A. § 16-14-2(b). Under the federal RICO statute,

a similar legislative intent can be found. ‘The legislative

history clearly demonstrates that the RICO statute was

intended to provide new weapons of unprecedented scope

for an assault upon organized crime and its economic

roots.”’ Russelio v. United States, __. U.S. ___., 104 8..Ct.

296 (1983). This Court recognized in that decision that

the forfeiture provisions of the federal RICO statute in-

clude all profits and proceeds of racketeering enterprises.

See 18 U.S.C. § 1963(a)(i). The Georgia statute has a

similar intent and purpose to the federal RICO statute.

The Georgia General Assembly, like Congress, recognized

the need to fashion new remedies in order to achieve the

far-reaching objective of combatting organized crime.

Respondent submits that the search in question was

conducted pursuant to a valid search warrant which was

specifically not a general warrant on its face. The scope

« of the search itself should not be sufficient for this Court

to take a drastic approach to the application of the ex-

clusionary rule and exclude all evidence seized. The offi-

cers did not act in flagrant disregard of the provisions of

the warrant, but acted pursuant to the warrant and pur-

suant to the forfeiture provisions of the Georgia RICO

statute. In light of the purposes intended to be served by

both the Georgia and federal RICO statutes, Respondent

would urge this Court to uphold the searches in question

and conclude that there was no requirement that all evi-

dence seized under said searches be suppressed at trial.

CONCLUSION

For all of the above and foregoing reasons, the convic-

tions and sentences of the Petitioners should be affirmed

and this Court should affirm the decision of the Supreme

Court of Georgia.

Respectfully submitted,

Mary Bern WestTMORELAND

Assistant Attorney General

Counsel of Record for

Respondent

Micuase. J. Bowers

Attorney” General

James*P. Gooae, Jr.

Executive Assistant

Attorney General

Marion O. Gorpon

First Assistant

Attorney General

WiiuiaM B. Hin, Jr.

Senior Assistant

Attorney General

a 2 Lewis R. Staton

io Cente Dadi ae: District Attorney

Atlanta, George 88 H. Auten More “i

(404) a Assistant District Attorney

33

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 ac-

cordance with the rules of the Supreme Court of the

United States, I have this day served a true and correct

copy of this Brief for the Respondent upon the Petitioners

by depositing copies of same in the United States mail

with proper address and adequate postage to:

Charles R. Smith

P. O. Box 1440

Cumming, Georgia 31030

Herbert Shafer

432 Delmont Drive, N.E.

Atlanta, Georgia 30305

Covington & Burli <

1201 Pennsylvania Avenue, N.W.

Washington, D. C. 20044

%

Burt Neuborne

Charles 8. Sims

American Civil Liberties Union —

132 Weat 43rd Street

New, York, New York 10036 |. n

this“) “4 day of February, 1984. \

b/

ita py Wer