Amicus Brief for the United States — Waller v. Georgia

Office - Supreme Court, U.S.

FILED.

FEB 21 1984

lL. STEVAS.

CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

Nos. 83-321 and 83-322

Guy WALLER, PETITIONER

Vv.

STATE OF GEORGIA

CLARENCE COLE, ET AL., PETITIONERS

¢

v.

STATE OF GEORGIA

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF GEORGIA

BRIEF FOR UNITED STATES AS AMICUS CURIAE

SUPPORTING RESPONDENT

REx E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ALAN I. Horow1tTz

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

The United States will address the following

questions:

1. Whether Ga. Code § 16-14-7(f) is unconstitu-

tional on its face in authorizing the seizure of private

property incident to a lawful arrest, search, or in-

spection if “the officer has probable cause to believe

the property is subject to forfeiture.”

2. Whether the seizure of items not specified in a

valid search warrant requires the suppression of

‘ems seized under the authority of the warrant.

TABLE OF CONTENTS

Page

Interest of the United States .....2...............---cccece-eeeeeeeneeeees 1

EE FET RE a ee ae RRS os See 2

IIE GE GIO, onan. scssesnectnesecctececescccrsneccecertmecees

Argument:

I. Georgia’s forfeiture seizure statute is constitu-

I earns 6

II. Evidence seized pursuant to valid warrants

should not be suppressed simply because other

items not specified in the warrants were also

SARE REET iy. Sa ae See a 15

Conclusion 21

TABLE OF AUTHORITIES

Cases:

Agnello vy. United States, 269 U.S. 20 ...................... 12

Andresen V. Maryland, 427 U.S. 468 .......................... 5-6, 16

Arkansas v. Sanders, 442 U.S. 758 ...................------+- 1l

Baker v. United States, 401 F.2d 958 ........................ 19

Calero-Toledo vy. Pearson Yacht Leasing Co., 416

A i a ici 5, 14

G.M. Leasing Corp. v. United States, 429 U.S. 388.. 4, 5,

10, 18

Gannett Co. v. DePasquale, 448 U.S. 368 ................ 19

Gelbard v. United States, 408 U.S. 41 ..................... 20

Globe Newspaper Co. v. Superior Court, 457 U.S.

596 18

Katz v. United States, 889 U.S. 347 9

Linkletter v. Walker, $881 U.S. 618 ............................ 9

McCray V. Illinois, 8386 U.S. 800 .............................. 19

Payton Vv. New York, 445 U.S. 578 —...................... 10, 11, 18

Rovinsky Vv. McKaskle, 722 F.2d 197 ........................ 18-19

Stanford v. Texas, 879 U.S. 476 .. 16

Texas V. Brown, No. 81-419 (Apr. 19, 1983) ......4, 9, 10, 13

(m1)

Cases—Continued : Page

United States v. Chadwick, 488 U.S. 1 ...................-.. 11

United States v. Cianfrani, 573 F.2d 835 ................ 20

United States v. Dorfman, 690 F.2d 1230 ................ 20

United States v. Dunloy, 584 F.2d 6 ...................-.-ee 15

United States v. Eight Thousand Eight Hundred

and Fifty Dollars, No. 82-1062 (May 23, 1983)... 14

United States v. Forsythe, 560 F.2d 1127 ................ 15-16

United States v. Heldi, 668 F.2d 1238, cert. denied,

P £ kOe eR ee 5, 15, 17

United States v. Holmes, 452 F.2d 249, cert. de-

Lk FR ee Ss 16

United States v. Mendoza, 478 F.2d 692 .................. 16

United States v. Morrison, 449 U.S. 361 .................. 21

United States v. Offices Known As 50 State Distrib-

uting Co., 708 F.2d 1871, cert. denied, No. 83-

OD Cir: hs Te iiss ie teceseccchsehiesvenstedbnees 15

United States v. Place, No. 81-1617 (June 20,

|! ERIS See Ee STR, fy Fae ae eA 10

United States v. Santana, 427 U.S. 38 ...................... 10

United States v. Tamura, 694 F.2d 591 | ........00...... 15

United States v. Watson, 423 U.S. 411 .................... 10

Warden V. Hayden, 387 U.S. 294 2.00000... cecccceeeene 11,12

Wong Sun v. United States, 371 U.S. 471 ................ 16

Constitution, statutes and rules:

U.S. Const. :

II: Bix sclistcindnrnsuteindbbcienentidesilibipiaigiatetiien aaah 18

ps, RS A alert rate ene 4, 5, 9, 10,14

pS Eh 9 SRA a re tare ener 18, 19, 20, 21

Classified Information Procedures Act, 18 U.S.C.

Dae, TE OE GG hic iiinkialinsheemteresertenintiienitie 2,19

T® Bit ae SS 8 eee 19

§$6(a), 18 U.S.C. App. at 550 _...................... 19

§$6(d), 18 U.S.C. App. at 550 ................ 19

Omnibus Crime Control and Safe Streets Act of

1968, Tit. ITI, 18 U.S.C. 2610-2620 2,19

18 U.S.C. 2511 (e) .............. 19

18 U.S.C. 2617 19

Vv

Constitution, statutes and rulese—Continued : Page

I Ss atadamipiitlansaniiboal 1

SE TE A ne eee oa 14

ee I cs igesduebeungioosee 2,8

Georgia Racketeer Influenced and Corrupt Organi-

zations (RICO) Act, Ga. Code §§ 16-14-1 to 16-

14-15 (1982 & Cum. Supp. 19838) ........................ 2

§ 16-14-7(a) (Cum. Supp. 19838) —.....00000..... 12-18

§ 16-14-7(f) (Cum. Supp. 19838) ................ 8, 4, 7,14

§ 16-14-7(i) (Cum. Supp. 1988) .................... 14

Ga. Code (1982) :

es alta 3

ATS SEES San Yon 8

Uniform Controlled Substances Act, 9 U.L.A. 187

et seq. (1979 & Cum. Supp. 1983) :

p. 78 (Cum. Supp. 1983) ..0.00000..0....... ideale 8

I, I een NL as cessasbntbanbentenaie 8

ae RRA ES SE EES Sl We eer ean 8

Fed. R. Crim. P.:

ee IIIT WOUED cccscesccccabcnnsubiasebivennquaniehinote 20

SPIE IIE * disintcidhtnasdinsssceatindasineiestennibeeniinpsenedayelints 14, 20

“a

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-321

GuY WALLER, PETITIONER

Vv.

STATE OF GEORGIA

No. 83-322

CLARENCE COLE, UT AL., PETITIONERS

Vv.

STATE OF GEORGIA

ON WRIT OF CERTIORARI TO THE .

SUPREME COURT OF THE STATE OF GEORGIA

BRIEF FOR UNITED STATES AS AMICUS CURIAE

SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

The Georgia statute challenged here is closely pat-

terned after the federal civil forfeiture statute relat-

ing to controlled substances offenses, 21 U.S.C. 881.

The federal statute authorizes the warrantless seizure

(1)

of forfeitable property on the basis of probable am

21 U.S.C. 881(b) (4), and hence petitioners’ conten-

tions cast doubt upon its constitutionality as well. By

the same token, the question of suppressing evidence

seized pursuant to a valid warrant because other

items were improperly seized in the course of execut-

ing the warrant arises in federal cases as well as

state cases.

In addition, while this brief does not treat the issue

in detail or take a position on its proper disposition

in the circumstances of this case, the question p

sented concerning the closure to the public of the a.

pression hearing potentially implicates policies em-

bodied in two federal statutes, the Classified Infor-

mation Procedures Act, 18 U.S.C. App. III, at 549

et seqeand Title III of the Omnibus Crime Control

and Safe Streets Act of 1968, 18 U.S.C. 2510-2520.

See note 14, infra.

STATEMENT

After a long investigation of suspected gambling

operations, Georgia law enforcement officers simul- |

taneously executed search warrants at numerous loca-

tions in early January 1982. The probable cause

underlying the warrants was based largely on evi-

dence obtained from a series of court-authorized

wiretaps. The searches uncovered considerable evi-

dence of criminal activity, and petitioners were

indicted and charged with violating the Georgia

Racketeer Influenced and Corrupt Organizations

(RICO) Act, Ga. Code §$§ 16-14-1 to 16-14-15 (1982

& Cum. Supp. 1983), and other gambling statutes.

At trial, petitioners.moved to suppress the evidence

that the searches and seizures were overbroad and

that no seizures could be justified on the basis of Ga.

Code § 16-14-7(f), which authorizes warrantless

seizures of forfeitable property on the basis of prob-

’ able cause, because that statute is unconstitutional on

its face. See J.A. 8a-12a. At the State’s request, the

suppression hearing was closed to the public so as to

prevent unnecessary publication of the intercepted

conversations (see J.A. 13a-18a). The trial court

ordered the suppression of items seized during the

searches that were beyond the scope of the warrant

(see J.A. 21a), but the suppression motions were

denied in all other respects (J.A. 19a).’ Thereafter,

petitioners were acquitted on the RICO count but con-

victed on the charges of commercial gambling and

communicating gambling information, in violation of

Ga. Code §§ 16-12-22 and 16-12-28 (1982) (J.A.

20a).

The Georgia Supreme Court affirmed (J.A. 20a-

28a). Without specifying whether any evidence had

been introduced at trial that had been seized pursuant

to Section 16-14-7(f), the court held that petitioners

1 Petitioners assert (Br. 9) that the suppression order of

the district court did not extend to all of the seized items that

were beyond the scope of the warrants. We have not had

access to the record (other than the Joint Appendix) and thus

are not in a position to address whether petitioners continued

to claim after the suppression order was entered that addi-

tional items should have been suppressed as outside the scope

of the warrants. We note, however, that the Georgia Supreme

Court obviously was of the view that all the gvidence intro-

duced at trial was within the scope of the warrants (see J.A.

2la-22a). Significantly, petitioners’ statement of the case in

their brief neglects to specify any items of evidence that were

seized during the searches of their premises and introduced

against them at trial that should have been suppressed as out-

side the scope of the warrants.

4

had standing to challenge the constitutionality of the

statute, but it rejected that challenge. The court ex-

plained that the statute merely authorized the seizure

of property discovered in the course of a lawful

search on the basis of probable cause to believe that

it was forfeitable. Hence, the court held, “[b]y defini-

tion * * * the statute complies with the Fourth

Amendment.” J.A, 21a. The court also rejected peti-

tioners’ contention that the evidence lawfully seized

pursuant to the search warrants and introduced at

trial should be suppressed because other items were

seized that were not specified in the warrants (J.A.

2la-22a). The court also upheld the trial court’s

decision to close the suppression hearing (J.A. 23a).

SUMMARY OF ARGUMENT

I. The seizure provision of the Georgia civil for-

feiture statute, Ga. Code § 16-14-7(f) (Cum. Supp.

1983), plainly is constitutional on its face. It does

not authorize any search and consequent invasion of

privacy whatsoever; it permits the seizure of prop-

erty on the basis of probable cause to believe that it is

forfeitable. Thus, the statute simply reflects the well

established rule that if police officers are lawfully

present in a particular place and see an object that

they have probable vause to seize, they may seize that

object immediately. See, e.g., Texas v. Brown, No.

81-419 (Apr. 19, 1983), slip op. 8 (plurality opin-

ion) ; G.M. Leasing Corp. v. United States, 429 U.S.

338, 354 (1977). This is because the Fourth Amend-

ment consequences of an erroneous seizure are much

less severe than those of an erroneotis search. There

is an interference only with a possessory property

interest, not a privacy interest, and thus it is not

necessary to invoke the prophylactic measure of a

warrant and its advance judicial determination of

probable cause in order to justify a seizure.

There is no reason why the authority to seize on

the basis of probable cause should exist for evidence

of a crime or stolen property, but not for forfeitable

property. Indeed, this Court has recognized that an

innocent object like a car may be seized without a

warrant, even if totally unconnected with criminal

activity. See G.M. Leasing Corp. v. United States,

supra. It may be, as petitioners contend,*that the

inherently innocent nature of forfeitable property

makes it more difficult to establish probable cause

than in the case of evidence, but that is no basis for

challenging the facial validity of the statute. In

those situations where an officer does have probable

cause to believe that property is forfeitable, the

seizure authority conferred by the Georgia forfeiture

statute plainly satisfies the Fourth Amendment. If,

conversely, a seizure is made without probable cause,

as petitioners suggest happened in this case, that

seizure would be unlawful quite without regard to

the facial validity*of the statute, which does not in

any event permit such a seizure. And it is clearly

established that a seizure of forfeitable property by

a police officer does not violate due process because of

the absence of a pre-seizure hearing. Calero-Toledo

v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974).

iI. The courts of appeals have consistently held

that items seized pursuant to a valid warrant are

not to be excluded from evidence merely because the

officers conducting the search also seized items not

specified in the warrant. See, e.g., United States v.

Heldt, 668 F.2d 1238, 1259-1269 (D.C. Cir. 1981),

cert. denied, 456 U.S. 926 (1982); see also Andresen

6

v. Maryland, 427 U.S. 463, 482 n.11 (1976). This

general principle follows from the rule that evidence

is not to be suppressed unless it is the “fruit” of an

illegality. Even assuming that complete suppression

could be justified in an extreme case where police

officers used a narrow warrant as a pretext to con-

duct a general search, in effect treating it as a gen-

eral warrant, the record here provides no possible

basis for finding that this is such a case. Indeed,

petitioners point to no evidence that the searches

exceeded the authorization of the warrants at all;

their allegations focus only on the seizwre of items

outside the scope of the warrants, which is clearly

separable from the lawful seizure of other items. In

short, the record before this Court provides no basis

for suppressing the evidence introduced at trial that

was seized in accordance with the search warrants.

ARGUMENT

I. GEORGIA’S FORFEITURE SEIZURE STATUTE IS

CONSTITUTIONAL ON ITS FACE

, At the outset, we note that it is far from apparent

that the question of the constitutionality of the Geor-

gia civil forfeiture statute is properly before this

Court. As far as we are aware, all of the evidence

introduced at trial was discovered and seized under

the authority of valid search warrants or pursuant to

wiretaps that are not challenged here. According to

the Georgia Supreme Court (J.A. 21a), “[s]uch

items as were unlawfully seized were excluded from

evidence at trial.” Petitioners do not specify any

evidence introduced at trial that was the subject of

a warrantless seizure under the Georgia forfeiture

7

statute.? Moreover, the gravamen of their complaint

seems to be (e.g., Pet. Br. 24-26) that numerous

seizures were made that were not supported by prob-

able cause; not only does this raise no issue of the

facial validity of the statute, but it fails to implicate

the statute even as applied, since the statute does not

purport to allow non-probable-cause seizures. Hence,

even assuming that the statute is unconstitutional, it

is not clear why that should have any effect on the

validity of petitioners’ convictions, or why this Court

would be rendering anything other than an advisory

opinion were it to pass upon the issue here. —

In any event, petitioners’ challenge to the facial

validity of Section 16-14-7(f) is groundless. The

statute simply allows a law enforcement officer, “in-

cident to a lawful arrest, search, or inspection,” to

seize property that he has probable cause to believe

is subject to forfeiture “and will be lost or destroyed

if not seized.” Plainly, the statute does not purport

to authorize any sort of warrantless search; it con-

cerns only the seizure of items already discovered by

officers in the course of an otherwise lawful search.’

This type of provision is common in civil forfeiture

statutes. The Georgia provision authorizing warrant-

less seizures on the basis of probable cause is quite

2 The only items that petitioners specify as seized under the

authority of the civil forfeiture statute (see Br. 24 n.32) are

some personal records that were apparently suppressed by the

trial court (see Pet. Br. 9; J.A. 19a, 21a) and an automobile

that was seized some time after the search warrants were

executed and for the purposes of civil forfeiture proceedings

not involved here.

* Petitioners assert (Br. 24 n.82) that, in light of the trial

court’s “refusal to pass on the validity of the search warrants,”

Section 16-14-7(f) must be treated as authorizing “warrant-

8

similar to the analogous provision in the federal civil

forfeiture statute for the fruits and instrumentalities

of drug transactions, 21 U.S.C. 881(b) (4), and to

forfeiture statutes in almost every state in the

country.*

A. For purposes of the warrant requirement, there

is a sharp constitutional distinction between searches

and seizures. Searches involve an interference with

less entry into a person’s home [and] an indiscriminate search

of the premises * * *.” This characterization of the authority

conferred by the statute is patently absurd given the statu-

tory language. Moreover, while we have not had an oppor-

tunity to examine the entire record in this case, the facts

as revealed in the papers that have been filed make it quite

clear that the trial court’s action here does not evidence any

approval of warrantless searches, whether pursuant to the

forfeiture statute or otherwise. The motion to suppress re-

printed in the Joint Appendix (at 8a-12a) raised 23 grounds

for suppression, 21 of which related to the wiretaps that pro-

vided probable cause for the searches that occurred in this

case. The other two grounds, including the challenge to the

facial validity of the forfeiture statute, focused on the alleged

overbreadth of the seizures. Thus, once the trial court decided

that the wiretaps were valid (a finding that is not challenged

here), it is not apparent on what grounds it could possibly

have held that the search warrants were invalid. The entries

and accompanying searches were authorized by valid warrants

and hence constitutional. The only remaining qvestion for the

trial court would appear to have been whether the seizures

were overbroad, and, as noted above, it apparently resolved

that by suppressing as evidence items seized outside the scope

of the warrants.

* The federal provision is incorporated in Section 505 of the

Uniform Controlled Substances Act, 9 U.L.A. 612-618 (1979).

That uniform statute has been substantially adopted by 46

states, plus the District of Columbia, Puerto Rico, and the

Virgin Islands. 9 U.L.A. 187-194; id. at 78 (Cum. Supp.

1983).

9

an individual’s legitimate expectations of privacy, and

thus they implicate the core interest protected by the

Fourth Amendment. See, e.g., Katz v. United States,

389 U.S. 347 (1967). If police officers conduct a

search based on their opinion that probable cause ex-

ists, and that opinion turns out to have been errone-

ous, the invasion of privacy has already occurred, and

“the ruptured privacy of the victims’ homes and ef-

fects cannot be restored.” Linkletter v. Walker, 381

U.S. 618, 637 (1965). Because of the severe conse-

quences in terms of Fourth Amendment values of

such a miscaJeulation by the police, the prophylactic

measure of a warrant is generally required for

searches in order to interpose a judicial determina-

tion of probable cause before the intrusion occurs.

Seizures are quite different. A seizure involves no

invasion of privacy; it represents rather an inter-

ference with an individual’s possessory interest in a

piece of property. See Texas v. Brown, No. 81-419

(Apr. 19, 1983), slip op. 8 (plurality opinion). If

a seizure turns out to be erroneous, the property

can be returned, and the ly injury is the depriva-

tion of possession for a limited time. Because the

Fourth Amendment consequences of an erroneous sei-

zure are not nearly as severe as in the case of an

erroneous search, it is generally reasonable to permit

seizures—on the basis of probable cause—without

advance authorization by a magistrate.‘

Recognizing these important distinctions between

searches and seizures, the Court has followed “the

rule that if, while lawfully engaged in an activity

in a particular place, police officers perceive a sus-

picious object, they may seize it immediately.” Tezxaz

* Of course, the police officer’s determination of probable

cause is still subject to subsequent judicial review.

10

v. Brown, slip op. 8 (plurality opinion). See also

id. at 2-3 (Stevens, J., concurring) ; Payton v. New

York, 445 U.S. 578, 587 (1980); G.M. Leasing Corp.

v. United States, 429 U.S. 338, 354 (1977); but see

United States v. Place, No. 81-1617 (June 20, 1983),

slip op. 4 (dictum). Indeed, even the more intrusive

seizure of a person (i.e., an arrest), may be effected

in a public place without a warrant. United States

v. Santana, 427 U.S. 38, 41-42 (1976) ; United States

v. Watson, 423 U.S. 411 (1976). A warrantless sei-

zure may occur in a public place; it may also occur

in a place in which an individual has a privacy in-

terest, but only if police officers are already lawfully

on the premises and the object seized is in plain view.

As long as there is no significant additional invasion

of privacy, 1.e., if the officer is in a place that he has

a right to be and no additional search is effected, the

officer may seize on the basis of probable cause with-

out a warrant. See Texas v. Brown, slip op. 3

(Stevens, J., concurring).

This connection between the warrant requirement

and a privacy intrusion is reflected in several of this

Court’s holdings. In G.M. Leasing Corp. v. United

States, supra, the government seized certain property

of the taxpayer without a warrant in partial satis-

faction of income tax assessments. The Court upheld

the warrantless seizure of automobiles on the street

(429 U.S. at 350-351), but struck down as violative

of the Fourth Amendment the seizure of certain

books and records that took place following a war-

rantless intrusion into the privacy of the taxpayer’s

offices (id. at 352-358). See generally id. at 354.

Similarly, in Payton v. New York, supra, the Court

recognized the general principle that warrantless ar-

rests meet Fourth Amendment requirements, but

11

held that a warrant was required if executing the

arrest would require a search of the home to find the

suspect. 445 U.S. at 587-590, 598; id. at 603 (Black-

mun, J., concurring). And in Arkansas v. Sanders,

442 U.S. 753 (1979), where the Court held that a

warrant was necessary to search a suitcase found in

an automobile, the Court explained that the police

were entitled to seize the suitcase on the basis of

probable cause pending the issuance of a warrant

and, indeed, acted “commendably” (id. at 761) in

doing so. See id. at 764 n.12; see also United States

v. Chadwick, 483 U.S. 1, 18-14 & n.8 (1977).

Against this background, it is clear that the Geor-

gia forfeiture statute is constitutional on its face.

The statute does not authorize any warrantless

searches. It simply reflects a rule well recognized by

this Court—-when the police are in a place where they

have a right to be and see an item that they have

probable cause to believe is seizable because it is sub-

ject to forfeiture, they may seize the item immedi-

ately without the need to obtain a warrant.

B. Indeed, it is not completely clear upon what

theory petitioners base their claim of unconstitution-

ality (see Pet. Br. 24-28). They appear to concede

that the Georgia police would have been permitted

to seize evidence of a crime without a warrant. But,

relying on Warden v. Hayden, 387 U.S. 294 (1967),

petitioners contend that the statute is defective be-

cause it authorizes the warrantless seizure of prop-

erty that is not “clearly incriminating” (Br. 26) and

is “without a constitutionally sufficient ‘nexus’ to

criminal behavior” (Br. 27). This unfocused objec-

tion cannot withstand analysis.

Surely petitioners are not suggesting that the stat-

ute is unconstitutional because it authorizes the sei-

zure of items that are not “evidence” within the

12

meaning of Warden v. Hayden; that would mean that

forfeitable property could not be seized even with a

warrant. But if forfeitable property is seizable, pe-

titioners advance no convincing reason why it may

never be seized in the absence of a warrant. The

extent to which property is incriminating on its face

may well be relevant to the likelihood that probable

cause will exist to seize it in a particular case, but

it is irrelevant to whether a warrant is necessary to

seize it, given the existence of probable cause. The

legislature determines what property should be taken

into custody by officers of the state; given that de-

termination, the Constitution generally prohibits the

officers from seizing such property unless they have

probable cause to believe that the property is of the

character that the legislature has determined should

be within the custody of the state. If there is prob-

=hle cause to believe that the property is seizable,

Aowever, the Constitution draws no distinction de-

pending upon the reason for the seizure, i.e., whether

the property is evidence of a crime, contraband, or

forfeitable.

There is no logical reason why the fact that for-

feitable property may not be incriminating on its

face should pose a constitutional barrier to its

seizure.’ Just as other information may create prob-

* This Court has clearly cautioned against confusing the

strength of probable cause with the need for a warrant before

invading a private area. See, e.g., Agnello v. United States,

269 U.S. 20, 33 (1925).

7 To the extent petitioners partially rest their argument on

the characterization of forfeitable property as lacking a nexus

to criminal activity, the factual premise is faulty. Although

the statute is a civil forfeiture statute, the definition of for-

feitable property is property used or derived from criminal

racketeering activity. Ga. Code § 16-14-17(a) (Cum. Supp.

13

able cause to believe that an apparently innocent

item, such as a diamond necklace, is seizable as stolen

property (see Pet. Br. 27 n.39), so other information

may create probable cause to believe that a diamond

necklace is seizable as property subject to forfeiture.

Indeed, contrary to petitioners’ contention (Br. 27)

that the Georgia statute “expand[s] the categories

of property subject to seizure without warrant be-

yond those established by this Court,” this Court has

unequivocally held that warrantless seizures are not

restricted to “clearly incriminating” property or evi-

dence of a crime. In G.M. Leasing, the Court upheld

the warrantless seizure of an automobile that was not

in any sense connected with criminal activity; it was

seized merely as an asset of a delinquent taxpayer.

A fortiori, the Constitution must permit the warrant-

less seizure of property forfeitable as the proceeds of

a criminal transaction.

The crux of petitioners’ argument appears to be

the assertion that it is difficult for the officer in the

field to generate probable cause to believe that prop-

erty is forfeitable (see Br. 25-26). That may well be,

and it may even be that the police in this case seized

property under the asserted authority of the for-

feiture statute without probable cause (see Pet. Br.

25), in which case any such seizures would violate

both the Constitution and the Georgia statute.* But

that is no basis for attacking the facial validity of the

1983). Thus, if police have probable cause to believe that prop-

erty is forfeitable, they similarly have probable cause to believe

that the property is “‘associate[d] * * * with criminal ac-

tivity’” (Pet. Br. 25 (emphasis omitted), quoting Tezas V.

Brown, slip op. 10 (plurality opinion); see also Payton Vv.

New York, 445 U.S. at 587).

8 We do not see how this Court can assess such a fact-bound

contention here, because petitioners have not even specified

what evidence they seek to suppress on this ground.

14

statute. It cannot be denied that situations will arise

where police do have probable cause to believe that

property is forfeitable—for example, where they ob-

serve money change hands in a drug transaction. In

such a situation, it is clear that the statutory authori-

zation in Ga. Code § 16-14-7(f) to seize such for-

feitable property without a warrant satisfies the

Fourth Amendment.

C. Petitioners’ brief contention (Br. 27-28) that the

Georgia statute violates due process is completely

misguided. This Court has unequivocally held that

due process does not require a pre-seizure hearing

when the government seizes items subject to forfeit-

ure. United States v. Eight Thousand Eight Hundred

and Fifty Dollars, No. 82-1062 (May 23, 1983), slip

op. 6 n.12; Calero-Toledo v. Pearson Yacht Leasing

Co., 416 U.S. 663 (1974).* While it is theoretically

possible that a due process problem could arise if a

post-seizure hearing were unnecessarily delayed, peti-

tioners make no such allegation in this case. In any

event, the Georgia statute appears to provide for

prompt forfeiture proceedings, and Section 16-14-7

(i) even provides that a motion to dismiss the pro-

ceeding must be acted upon within 10 days.”

* The contention that a pre-seizure hearing is required is

particularly perverse in the case of the Georgia statute, which

permits a warrantless seizure only if the officer believes that

the property will be “lost or destroyed if not seized” —#.e., only

if there are exigent circumstances that would excuse procure-

ment of a warrant even if one were otherwise required.

1 Under the federal] statute, forfeiture proceedings must be

instituted “promptly” if the property is seized on the basis of

probable cause without a warrant. 21 U.S.C. 881(b). If an

individual believes that his property was seized illegally, he

may move immediately for return of the property under Rule

41 (e), Fed. R. Crim. P.

15

II. EVIDENCE SEIZED PURSUANT TO VALID WAR-

RANTS SHOULD NOT BE SUPPRESSED SIMPLY

BECAUSE OTHER ITEMS NOT SPECIFIED IN

THE WARRANTS WERE ALSO SEIZED

Petitioners briefly contend (Br. 29-30) that all of

the evidence seized during the warrant searches

should be suppressed because the officers executing

the warrant also seized numerous items that were not

specified in the warrant. There is no specific factual

predicate for this contention,“ and petitioners point

to no findings of the trial court concerning whether,

and to what extent, some of the searches and seizures

were overbroad. On this record, therefore, petitioners’

contention appears to be that an overbroad seizure,

as a general rule, requires the suppression even of

items specified in the search warrant. This conten-

tion is clearly mistaken.

The courts of appeals have consistently held that

items seized pursuant to a valid warrant are not to

be excluded from evidence merely because the officers

conducting the search also seized items not specified

in the warrant. See, e.g., United States v. Offices

Known As 50 State Distributing Co., 708 F.2d 1371,

1376 (9th Cir. 1983), cert. denied, No. 83-568 (Feb.

21, 1984); United States v. Tamura, 694 F.2d 591,

597 (9th Cir 1982) ; United States v. Heldt, 668 F.2d

1238, 1259-1269 (D.C. Cir. 1981), cert. denied, 456

U.S. 926 (1982); United States v. Dunloy, 584 F.2d

6, 11 n.4 (2d Cir. 1978) ; United States v. Forsythe,

" Petitioners do cite (Br. 3 & n.8) a few excerpts of sup-

pression hearing testimony stating that some items outside the

scope of the warrant were seized, but it is not clear to what

extent the limitations of the warrant were violated or even if

these excerpts pertain to searches of petitioners’ homes (see

the last paragraph of the footnote).

16

560 F.2d 1127, 1134 (3d Cir. 1977); United States

v. Mendoza, 473 F.2d 692, 696-697 (5th Cir. 1972) ;

United States v. Holmes, 452 F.2d 249, 259 (7th Cir.

1971), cert. denied, 405 U.S. 1016, 407 U.S. 909

(1972). And this Court has implicitly recognized

the correctness of these decisions. See Andresen v.

Maryland, 427 U.S. 463, 482 n.11 (1976). These de-

cisions simply follow the well established principle

that evidence is not to be suppressed unless it is the

“fruit” of an illegality. Wong Sun v. United States,

371 U.S. 471, 488 (1963). Indeed, it would serve no

useful purpose—and would seriously impair law en-

forcement while distorting the actions and judgments

of law enforcement agents—to penalize an error in

the execution of a warrant by suppressing not only

the fruits of that erroneous act but all the evidence

seized pursuant to the warrant.

Petitioners provide no relevant authority to sup-

port their contrary position. Their reliance (Br. 29)

on Stanford v. Texas, 379 U.S. 476 (1965), is mis-

placed. In Stanford, the police conducted a search

under the authority of an impermissibly general war-

rant, which presents a completely different situation

from this case. Because the warrant itself was in-

valid, there was not even any lawful basis for the

officers to enter Stanford’s home. Nor in the case of

a pure general warrant is there any basis for dis-

tinguishing among the items seized and classifying

some as lawfully seized, because they are all seized

pursuant to the same invalid authorization. Here, by

contrast, it is not contested that the search warrants

were valid. Thus, the officers lawfully entered onto

private premises, and they were authorized to search

for and seize those items specified in the warrants.

There is no reason why the seizure of additional items

17

should invalidate those lawful seizures. If the officers

had entered and executed the search warrants in an

unimpeachable manner and then returned the next

day to seize some items not specified in the warrants,

it could not seriously be argued that the later illegal

seizures would invalidate the fruits of the earlier law-

ful search. There is no reason to treat the situation

here any differently.

Quoting United States v. Heldt, 668 F.2d at 1259,

petitioners contend (Br. 29-30) that a “flagrant dis-

regard” of the limitations of the warrant can require

suppression of all the evidence seized and argue that

this case meets that standard because the police did

not confine their search in good faith to the objects of

the warrant. Even assuming that the policies of the

exclusionary rule would warrant complete suppres-

sion in an extreme case where a narrow warrant au-

thorization is used as a pretext to conduct a general

search,” it is clear that petitioners have not demon-

strated that they ure entitled to relief on that basis.

Petitioners’ objection to the execution of the warrants

is focused almost entirely on the allegedly overbroad

seizures; nothing cited in the record suggests that the

searches went beyond the authorization of the war-

12 Even in such circumstances, it is not clear that an excep-

tion to the fruits principle of the exclusionary rule is appro-

priate. The purpose of the rule is deterrence; knowledge that

no profit can be gained from the illegal aspects of a search

should, under the hypothesis of the rule, remove the incentive

for misconduct. Sometimes the deterrence fails, of course, but

the costs associated with suppressing lawfully seized evidence

have in every other context been thought to outweigh any

increment in deterrence that might thereby be obtained, and it

is not apparent why a different principle would apply to par-

tially valid, but otherwise overbroad, searches or seizures.

18

rant." Indeed, petitioners appear to complain (see

Br. 8 n.3) that the searches were not extensive

enough in that the officers seized entire boxes of

records without first sorting through them to sepa-

rate relevant from irrelevant documents. Thus, peti-

tioners have made no showing that the police officers

here used a warrant as a pretext for conducting a

general search. In short, the record before this Court

provides no basis for suppressing the evidence seized

in accordance with the specifications of the valid

search warrants.“

18 Even with respect to the seizures, it is not apparent why

the seizures outside the scope of the warrant should be treated

as evidence that the officers ignored the terms of the warrant.

Petitioners have asserted that these seizures were grounded

on the RICO statutory seizure authority (see Br. 24); if so,

there is no factual basis whatsoever for asserting that the

officers disregarded the limitations of the warrant.

144 We take no position on the first question presented—

whether the trial court’s closure of the suppression hearing

over petitioners’ objection violated their Sixth Amendment

right to a public trial. Insofar as petitioners attack the scope

of the closure ordered in their case, their claim that it was

broader than necessary in the circumstances may be well taken

(although not necessarily establishing a constitutional viola-

tion). We are confident that federal practice would limit the

scope of any closure order to that necessary to protect the

confidentiality interests at stake. Our concern here, however,

is that the Court give due recognition to the fact that there

are circumstances in which any right of the defendant to

public pretrial proceedings must give way to more weighty

competing interests.

This Court has not heretofore had occasion to consider the

scope of an accused’s Sixth Amendment right to a public trial.

Assuming that that right is close to absolute in the context of

the trial itself (but cf. Globe Newspaper Co. v. Superior Court,

457 U.S. 596, 606-607 (1982) (First Amendment right of

public access to trial is not absolute) ; Rovinsky v. McKaskle,

19

722 F.2d 197, 200 (5th Cir. 1984) (dictum) ), however, the

right to a public pretrial hearing must nevertheless be of

more limited dimension. Public scrutiny of the presentation

of evidence and arguments at the trial implicates the constitu-

tional protection envisaged by the Framers in a way that the

public access to pretrial hearings does not. See Gannett Co. V.

DePasquale, 448 U.S. 368, 387-891 (1979). And this Court has

recognized in other contexts the difference between pretrial

proceedings and the trie! itself with respect to the right of the

accused to compel the public disclosure of information sought

to be kept private. See McCray V. Illinois, 8386 U.S. 800, 311-312

(1967) (informant’s privilege). Hence, we submit that im-

portant state interests can justify closure (to the minimum

extent necessary) of a pretrial hearing. This is particularly

so where the interest weighing against public scrutiny of the

proceedings is one that derives from a considered legislative

policy. In the federal system, there are at least three situations

that would require some accommodation of any Sixth Amend-

ment right to public pretrial proceedings.

The Classified Information Procedures Act, 18 U.S.C. App.

III, at 549 et seq., establishes procedures to prevent the unnec-

essary disclosure of classified information in judicial proceed-

ings. Section 6 of the Act provides that the government may

request a pretrial in camera hearing to make determinations

with respect to the “use, relevance, or admissibility of classi-

fied information” at trial (§6(a)). If the court determines

that the classified information should not be disclosed, the

record of the hearing is sealed (§6(d)). We think it clear

that such a closed hearing could not conceivably violate the

Sixth Amendment. See, ¢.g., Baker v. United States, 401

F.2d 958, 978 n.91 (D.C. Cir. 1968) (recognizing that portion

of suppression hearing may be closed to avoid disclosure of

information affecting national security).

By the same token, Title III of the Omnibus Crime Control

and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, places strict

limitations on the use of evidence obtained through electronic

surveillance. While conversations intercepted through lawful

electronic surveillance may be introduced at trial or disclosed

under other strictly limited circumstances (18 U.S.C. 2517),

Section 2511(c) makes it a crime to disclose information

20

obtained by wiretaps not authorized by the statute. Given this

statutory scheme, it has been held that a suppression hearing

to determine the lawfulness of wiretaps must be closed to the

public in order to prevent the disclosure of information ob-

tained by wiretaps that might ultimately be determined to be

unauthorized. United States v. Cianfrani, 578 F.2d 835, 855-

857 (8d Cir. 1978); see also United States v. Dorfman, 690

F.2d 1280, 1282-1284 (7th Cir. 1982). This result clearly

appears to be correct. The restrictions on disclosure contained

in Title III are in the nature of a privilege designed to protect

the privacy interests of those persons whose conversations

have been intercepted (see generally Gelbard v. United States,

408 U.S. 41, 48-52 (1972) ) ; it would entirely defeat the privi-

lege if the conversations had to be disclosed to the public in

the course of a proceeding to determine whether or not the

privilege exists. We note in this connection that Title III

would require the closure of such a hearing to the public

(though only to the extent necessary to protect the confiden-

tiality of the recorded conversations) regardless of the con-

tent of the conversations. We reject petitioners’ suggestion

(Br. 21-22) that, where the legislature has created such a

privilege against disclosure and it is not waived by the relevant

parties, the Sixth Amendment nevertheless requires as a pre-

condition to closure of a pretrial hearing an ad hoc balancing

of several factors, including the degree to which the particular

conversations at issue implicate privacy interests. Where in

camera review is otherwise indicated, the possibly suppressible

wiretap evidence should not be publicly disclosed on the basis

of a finding that the conversations involved do not implicate

a significant privacy interest.

Another situation in which closure of pretrial proceedings

would plainly be justified is when grand jury materials have

been disclosed to the defense for the purpose of considering

a motion to dismiss the indictment because of irregularities in

the grand jury proceedings. See Fed. R. Crim. P. 6(e) (8)

(C) (ii). Such motions may sometimes require hearings at

which testimony and arguments would disclose matters occur-

ring before the grand jury. The Rule provides that any dis-

closure of grand jury material for these purposes “shall be

made in such manner, at such time, and under such conditions

as the court may direct,” which surely embraces the power

21

CONCLUSION

With respect to questions 2 and 3 presented by pe-

titioners, the judgment of the Supreme Court of

Georgia should be affirmed. Alternatively, because of

the state of the record, the writ should be dismissed

as improvidently granted with respect to these ques-

tions, or the case remanded for development of an

adequate record.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ALAN I, HoROWwITz

Assistant to the Solicitor General

FEBRUARY 1984

to exclude the public from any such hearing in order to avoid

dissemination of confidential materials beyond the extent

necessary to the court’s consideration and disposition of the

motion.

Finally, we note that petitioners’ brief does not address the

question of the proper remedy if a Sixth Amendment violation

is found. In our view, the general rule that the remedy should

be tailored to the violation (see, ¢.g., United States v. Mor-

rison, 449 U.S. 361 (1981)) clearly demonstrates that a new

trial is not an appropriate remedy. There is no allegation that

petitioners’ trial on the merits was not “public” as required

by the Constitution; at most petitioners should be entitled

to a new, public, suppression hearing. Unless that suppression

hearing reaches a different result from the first one, there is

no basis for vacating their convictions and ordering a new

trial.

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