Petition — COLE v. GEORGIA (Nos. 83-322, 83-321)

Office-Supreme Court, U.S.

8 3 3 9 2 FILED

AUG 26 1983

op ee Lae

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

CLARENCE COLE, W. B. BURKE,

EULA BURKE, and ARCHIE THOMPSON,

Petitioners,

v.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

STATE OF GEORGIA

PETITION FOR WRIT OF CERTIORARI

ae

Ss

QUESTIONS PRESENTED

1. Whether closure and exclusion of the public from

portions of a defendant’s trial for seven days, over the

opposition of the defendant and without any showing by

the prosecution that closure was necessary to achieve an

overriding governmental interest, violates the Sixth

Amendment to the Constitution of the United States.

2. Whether 0.C.G.A. §16-14-7(f) (formerly Ga. Code

Ann. §26-3405(d)(2)) facially violates the Fourth and

Fourteenth Amendments to the United States Constitu-

tion; because it delegates to the police officers executing 4

search warrant unbridled discretion to search for and

seize anything they choose to seize.

Subsumed under this question is whether the searches

and seizures, as conducted in this case under the au-

thority of that statute, were general. _

TABLE OF CONTENTS

Page

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

I IS i ihc’ bien e w8 ou. 00-00 Wisi wipes 1

JURISDICTIONAL STATEMENT............... 2

RAISING THE FEDERAL QUESTIONS......... 2

Sc, VLU hkl vb py bp do 08 vv 0-4 pee 2

B. UNCONSTITUTIONALITY OF THE

TMA Ls Cd yamidis eben 3.5. G.0.0'e's ate oo 3

CONSTITUTIONAL PROVISIONS INVOLVED.. 4

oye 6s SE ee 4

REASONS FOR GRANTING THE WRIT........ 5

Ss AN ae in UNS an a re ae 6

A. THE INTERESTS IDENTIFIED BY THE

COURT BELOW WERE INSUFFICIENT

TO JUSTIFY CLOSURE IN THIS CASE.... 6

B. THE STATUTE UNDER ATTACK......... 11

i CGN GRC ary Tabu 8 A660 dba bee Poa 15

CERTIFICATE OF SERVICE................... 16

APPENDICES A, B, C and D... . separately paginated

TABLE OF AUTHORITIES

Page

Cases Cited:

Boyd v. United States, 116 U.S. 616................ 15

Carroll v. United States, 267 U.S. 182............... 12

Gannett v. DePasquale, 443 U.S. 368............... 5, 6

Globe Newspaper Co. v. Superior Court,

Ms a eA os bia ehicwilkb-sigeessnenecie 5, 10

Gurelski v. United States, 405 F.2d 253, 258

SS areca veas vanes ibbsb vcacee vores 14

BAe ee I EE TU: OT ocak cs ccc cede rr ccccccds 5, 10

Kremem v. United States, 355 U.S. 346.............. 13

Marron v. United States, 275 U.S. 192, 196.......... 12

Morrison v. United States, 275 U.S. 192............. 12

Nebraska Press Assn v. Stuart, 427 U.S. 589........ 5

Richmond Newspapers Inc. v. Virginia,

REAM, wc a whoa ana) < 652 5000 kare 5, 6, 10

Stanford v. Texas, 379 U.S. 476.............. 00000. 15

United States v. Rettig, 589 F.2d 418, 422-423

RM MEPUER. a 50's UN saw ba buad Kove ede ehh) 14

iii

TABLE OF AUTHORITIES (Continued)

Page

Constitutional Provisions:

Fourth Amendment to the Constitution of the

URAL TAREE ible neat Pk ee ae 4,11, 12

Sixth Amendment to the Constitution of the

NEE eT POAC ANE ED) Te tog TRE oe 4

Fourteenth Amendment to the Constitution of the

ES Reg, pede enue ene: ce 4

Te. cco uaee vase ea 2

gs cet > |) See err ae 2

Statutes:

O.C.G.A. § 16-14-7(f) (formerly Ga. Code Ann.

© CGO) xv 20s 0 avticceneken suet i, 2, 3, 4, 15

Treatises:

Mascolo, Specificity Requirements for Warrants

under the Fourth Amendment: Defining the Zone

of Privacy, 73 Dick. L.Rev. 1, 5-6 (1968)......... 12

iv

| pene tae ie

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

CLARENCE COLE, W. B. BURKE,

EULA BURKE, and ARCHIE THOMPSON,

Petitioners,

v.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

STATE OF GEORGIA

PETITION FOR WRIT OF CERTIORARI

The Petitioners, Clarence Cole, W. B. Burke, Eula

Burke and Archie Thompson, respectfully pray that a

Writ of Certiorari issue to review the judgment of the

Supreme Court of Georgia, entered on June Ist, 1983,

and the denial of a timely motion for a rehearing, entered

on June 28th, 1983.

OPINIONS BELOW

The Supreme Court of the State of Georgia entered its

opinion affirming the Petitioner’s convictions on June Ist,

1983. Petition for rehearing was denied on June 28th,

1983. A copy of the opinion, as yet unreported, is attached

1

2

as Appendix A. A copy of the Order denying the petition

for rehearing is attached as Appendix B.

The decision of the trial judge of the Superior Court of

Fulton County, Atlanta Judicial Circuit, granting the

State’s motion for closure was oral and unreported. A

copy of portions of the transcript of the hearing held be-

fore the trial court at which the oral decision of closure

was announced is set out in Appendix C. The State’s

motion for closure filed on June 14, 1982 is attached as

Appendix D.

JURISDICTIONAL STATEMENT

Since this petition is being filed within sixty (60) days

from June 28th, 1983, it is timely.

The jurisdiction of this Court is invoked under 28

U.S.C. §1257(3). Moreover, because the constitutionality

of O.C.G.A. §16-14-7(f) (formerly Ga. Code Ann. §26-

3405(d)(2)) is drawn in question, 28 U.S.C. §2403(b) may

be applicable.

RAISING THE FEDERAL QUESTIONS

A. CLOSURE

After a jury was selected, it was excused in order that

the court conduct a lengthy (7 days) evidentiary hearing

on the Motion to Suppress wiretaps. Preliminary thereto,

the court considered the state’s motion (filed the week

before) to close the courtroom during the evidentiary

hearing. At the earliest possible moment petitioners’

counsel “‘vehemently” opposed closure, “‘insist{ing] on our

constitutional right to an open trial.’”’ 8.T. 11.*

*S.T. __, refers to the pagination of the Suppression Transcript.

3

Petitioners’ counsel requested that, in any event,

“several people who are vitally important to me’”’ be per-

mitted to remain in the courtroom in order to “effectively

render assistance of counsel.’’ (8S.T. 12-13).

The court would not allow them to remain since they

were not “‘officer(s) of the Court.”’ (8S.T. 13). And even

though the state did not object to defense counsel’s

secretary remaining, she, too, was excluded. (8.T. 15).

The same constitutional claim was twice (on the direct

appeal and on the petition for rehearing) asserted in the

Supreme Court of Georgia. The federal constitutional

claim was expressly denied by the Supreme Court of

Georgia: ‘We find that appellants’ Sixth Amendment

right to a public trial was not violated.”’ (App. A-5).

It is review of that denial which is here sought.

B. UNCONSTITUTIONALITY OF THE STATUTE

From the return of the indictment to the bitter end

(the Petition for Rehearing), the Petitioners repeatedly

and vigorously attacked then §26-3405(d)(2) Ga. Code

Ann. (now 0.C.G.A. 16-14-7(f)). In the Motion to Sup-

press, for example, the Petitioners said:

23) aca conducted under the authority of

20-2408 5d)G , Ga. Code Ann. are violative of the

ourteenth Amendments to the United

States Constitution in that it authorizes unbridled

seizures by the officers conducting the search without

the interposition of judicial control or restraint.

The Supreme Court rejected the Fourth and Fourteenth

Amendment attacks and held the statute constitutional

facially (App. A-2) and as applied (App. A-3).

4

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitu-

tion, in pertinent part, provides:

In all criminal prosecutions, the accused shall en-

_ joy the right to a speedy and public trial. . . .

The Fourth Amendment to the United States Consti-

tution provides:

The right of the —_— to be secure in their per-

sons, houses, papers and effects against unreasonable

searches and seizures shall not be violated, and no

warrants shall issue but upon probable cause, su

ported by oath or affirmation, and parti

describing the place to be searched, and the persons

or things to be seized.

The Fourteenth Amendment to the United States

Constitution, in pertinent part, provides:

Section 1. . . . No state shall make or enforce any

law which shall abridge the privileges or immunities

of citizens of the United States, nor shall any state

deprive any person of life, liberty or property without

due process of law... .

STATUTE INVOLVED

O.C.G.A. §16-14-7(f) (formerly §26-3405(d)(2) Ga.

Code Ann.), in pertinent part, provides:

5

REASONS FOR GRANTING THE WRIT

The first question presented by this petition requires

the attention of this Court in order to ensure that rights

guaranteed by the Sixth and Fourteenth Amendments to

the Constitution are not compromised by failure to com-

ply with the principles of law this Court announced in Jn

re Oliver, 333 U.S. 257, Globe Newspaper Co. v. Superior

Court, 102 S.Ct. 2613, Richmond Newspapers Inc. ».

Virginia, 448 U.S. 555, Nebraska Press Assn. v. Stuart,

427 U.S. 539, and Gannett Co. v. De Pasquale, 443 U.S. 368.

That question deals with the right of an accused to a

public trial —a right so firmly engrained in our notions of

ordered liberty that it stands among the very few of the

absolutes contained in the Bill of Rights to which this

Court, despite the passage of nearly 200 years, has never

squarely announced an exception. This Court recently

said that “in criminal trials in particular’ there is a pre-

sumption of openness harking back to ‘‘the time when our

organic laws were adopted . . . both here and in England,”

Globe Newspaper Co. v. Superior Court, 102 8.Ct. 2613

(emphasis the Court’s). That “presumption. was so

solidly grounded” at the time of this Court’s decision in

In re Oliver, 333 U.S. 257, that this Court was “unable to

find a single instance of a criminal trial conducted in

camera in any federal, state, or municipal court during

the history of this country.” Globe Newspaper Co. »v.

Superior Court, Idem, citing In re Oliver at 266.

Considering, then, ‘‘our long history of open criminal |

trials and the special value, for both public and the ac-

cused, of that openness,” Globe Newspaper Co. v. Superior

Court, 102 S.Ct. 2613 (O’Conner, J., concurring in the

judgment), it would seem that a criminal trial may not be

closed, in whole or in part, over the defendant’s objection

6

unless closure is inescapably necessary to safeguard a

state interest of the highest order, unless there are no less

drastic methods available for pursuing that interest and

unless it is clearly demonstrated that closure will guard

against the perceived danger. See Gannett Co. v. De Pas-

quale, 443 U.S. 368, 441-42, (Blackmun, J., concurring in

part and dissenting in part).

Although the court below identified a number of inter-

ests which, arguably, might be sufficient to justify

closure, it swept aside this Court’s carefully drawn,

stringent procedural requirements announced in Rich-

mond Newspapers as if they didn’t count. As for the trial

court, it conducted no hearing, no balancing act, articu-

lated no findings, did not even consider Richmond News-

paper’s procedural requirements; it simply slammed shut

the courtroom doors and kept them closed for 7 days over

petitioner’s futile protests. (See S.T. 11-16, Appendix C).

The failure of Georgia’s Supreme Court to apply Rich-

mond Newspaper’s procedural guidelines is troublesome

because it creates uncertainty over the parameters of an

important constitutional right in the context of the Sixth

Amendment. To the extent that that uncertainty gives

rise to the likelihood of erroneous decisions in future cases,

its very existence is inconsistent with the Sixth Amend-

ment.

ARGUMENT

A.

THE INTERESTS IDENTIFIED BY THE COURT

BELOW WERE INSUFFICIENT TO JUSTIFY

CLOSURE IN THIS CASE.

'“he Georgia Supreme Court held:

In the hearing here, information was revealed

7

which was potentially harmful to others, and might

prejudice other potential defendants. Under these

circumstances, the court balanced appellants’ 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

administration of justice.’’ Lowe v. State, 141 Ga.

App. 433, 435 (233 S.E. 2d 807) (1977). We find that

appellants’ Sixth Amendment right to a public trial

was not violated.

(Appendix A-4, 5)

Each of the goals articulated by the court below is cer-

tainly a worthy one. At the outset, however, the funda-

mental problem with the first three stems from their

potentially limitless application and from their focus on

concerns tangential to the central purpose of a criminal

trial. The theory, for example, that ‘information was re-

vealed which was potentially harmful to others, would

tend to violate the privacy of others, and might prejudice

other potential defendants,” is not a theory which logical-

ly limits itself to this case. Every case may contain infor-

mation potentially harmful to others; every case might

prejudice other potential defendants. If the goals articu-

lated by the court below were permitted to serve as the

foundation for a closed trial, public trials soon would be-

come a thing of the past.

Moreover, the central concern of a criminal trial is not

the comfort or mental tranquility of others or the insu-

lation of other potential defendants from prejudice. Te

say that is not to be callous or uncaring. Of course testi-

mony in a case may be potentially harmful to others. Of

course testimony in a case may tend to violate the privacy

of others. Of course efforts shoulp be made to mitigate the

8

unpleasant aspects of courtroom testimony. And of

course efforts should be made to protect other potential

defendants from prejudice. But the central object of a

criminal trial is the execution of the most awesome re-

sponsibility the people have reposed in their government:

The responsibility to determine whether a citizen should

be stripped of virtually every right this nation was

founded to protect, including the right to personal liberty

or even the right to life. Because of the extraordinary

concern of that object, all other concerns must necessarily

come second. Given the critical role played by a public

trial in the just execution of that central object, the only

interest truly compelling enough to warrant closure is an

interest in preserving the integrity of the trial itself. To

the extent that the interests asserted by the court below

have as their focus something else, they cannot provide a

proper foundation for closing any criminal trial.

Even if one assumes for the moment that each of the

interests articulated by the court below was sufficiently

compelling to warrant closure over the petitioners’ ob-

jections, the record in this case clearly demonstrates the

angers of closing a criminal trial based only on a prose-

cutor’s jeremiad without the trial court making a precise

and focused determination concerning whether closure is

necessary to achieve a relevant interest, whether it repre-

sents the least restrictive method for doing so or whether

it will be effective. Tested by these criteria, on the present

record, none of these interests was sufficient to warrant

closure.

The real mischief in this case lies in the fact that the

court below simply created a catalogue of horrors which

the trial court never envisioned, much less considered. |

Moreover, this record is devoid of any evidence showing

that the interests articulated by the court below were im-

periled, or that closure was necessary to protect them.

No information potentially harmful to ‘others’ was

revealed; no information which would tend to violate the

privacy of ‘‘others” was revealed; no information which

‘might prejudice other potential defendants’ was re-

vealed. The catalogue of horrors which the court below

spoke of was merely a rhetorical device to quiet peti-

tioners—sheer whimsy to justify a palpably bad decision.

Besides, unless the trial court was prepared to bar

access to the courtroom to everyone, including the defen-

dants, what was to prevent the defendants from disclos-

ing whatever transpired in the courtroom? How did

closure ameliorate this danger? The fact of the matter is

that closure in this case could not assure privacy in any

meaningful sense of the term; could not prevent dis-

closure of information “potentially harmful to others;”’

and could not prevent disclosure of information which

“might prejudice other potential defendants.”

Moreover, the record in this case will not permit a

reasoned conclusion that the prosecution was concerned

with any of these speculative problems. And the record is

devoid of amy evidence that any other prosecutions were

at risk becnuse of any evidence elicited dv*'ng the closure.

Much of what has been said about the first three inter-

ests applies, with even greater force, to the fourth, fifth

and sixth interests described by the court below, i.e., “to

preserve order and decorum in the courtroom, to protect

the rights of parties and witnesses, and generally to fur-

ther the administration of justice.’’ Appendix A-5.

To begin with, it’s extremely doubtful, at least in this

context, whether “generally to further the administration

10

of justice,”’ is the kind of interest which is sufficient to

overcome an accused’s demand for a public trial. The

thrust of this Court’s opinions in Globe Newspaper Co.,

Richmond Newspapers and Gannett would lead to precisely

the opposite conclusion, i.e., that the sound and orderly

administration of justice is furthered by the ‘‘presump-

tion of openness [which] inheres in the very nature of a

criminal trial under our system of justice.’’ Richmond

Newspapers, 448 U.S. at 573. A rule based on a contrary

presumption certainly cannot withstand constitutional

analysis.

The fourth interest identified by the court below, i.e.,

“to preserve order and decorum in the courtroom’’ has

traditionally been preserved by the courts without closure,

and, in this case, no one was indecorous.

The fifth, i.e., “to protect the rights of parties and

witnesses,” was never imperiled. Which parties needed

protection? Which witnesses needed protection? From

whom? From what? Why?

This Court has emphasized the historical importance of

openness in assuring “‘that the proceedings were con-

ducted fairly to all concerned, and [in discouraging] per-

jury, the misconduct of participants, and decisions based

on secret bias or partiality.” Richmond Newspapers, 448

U.S. at 569. See also Jn re Oliver, 383 U.S. 257, 266-70.

That being the case, it is apparent that arbitrary closure

must inevitably damage the integrity of the judicial

process and thus the justice in which that process results.

See generally Richmond Newspapers, 448 U.S. at 569-73.

To posit a “just” conviction following a secret trial is, in

sum, to. posit a contradiction in terms.

In summary, several of the interests identified are not

the kinds of interests which may justify exclusion of the

ty

11

public. And even if those interests may sometimes justify

partial closure, this record is devoid of any facts showing

a clear and direct nexus, or any nexus at all, between these

interests and closure here or a showing that some other

method would not have worked or even showing that

closure would.

Conclusion

There simply is nothing in the record now before this

Court which would lead to a reasoned conclusion that a

danger to the just progress of the petitioners’ trial, or even

the interests possessed by anyone else, would have been

presented by the attendance of the public.

Given the specific and focused guarantees of the Sixth

Amendment, given the principles which underlie these

guarantees and given the unbroken course of history

during which these principles and guarantees uniformly

have been observed, nothing short of the most compelling

necessity imaginable should serve to support exclusion of

the public from a criminal case. Certainly no prosecutor’s

mere unsupported request to remove certain portions of

certain trials from the public view should warrant closing

courtroom doors.

The judgment below should be reversed.

B.

THE STATUTE UNDER ATTACK

The statute under attack delegates to the police officers

executing a search unbridled discretion; hence, it not only

violates the Fourth Amendment’s specificity and partic-

ularity requirements, it constitutes an impermissible

delegation of the magisterial duty and function of deter-

mining, in advance, questions of probable cause and

12

laying out the permissible scope of the fruit to be gathered.

The statute authorizes the officer executing a search to

seize any property he “‘has probable cause to believe will

be subject to forfeiture and will be lost or destroyed if not

seized.”

The statute, then, authorizes the executing officer not

only to determine probable cause but dispenses with pre-

search determination of specificity and particularity.

This Court held almost eighty years ago that the warrant

must describe the property to be seized with sufficient

specificity and particularity, so that nothing is left to the

discretion of the executing officer. Marron v. United States,

275 U.S. 192, 196. Where the warrant invites discretion,

it fails for lack of specificity and is classified as general.

See Mascolo, Specificity Requirements for Warrants Under

the Fourth Amendment: Defining the Zone of Privacy,

73 Dick. L.Rev. 1, 5-6 (1968).

Nor does this statute fit within any well-delineated ex-

ception to the rule that searches conducted outside the

judicial process without prior approval are per se un-

reasonable under the Fourth Amendment. Carroll v.

United States, 267 U.S. 132. This statute simply permits

general searches. Morrison v. United States, 275 U.S. 192.

The warrants issued here authorized, generally, a search

for gambling-related evidence. Armed with the statute,

pithily: “Well, I’m taking the view that they went in and

took everything in sight.” (S.T. 638).

And the Georgia Supreme Court acknowledged that the

13

the police in a search for evidence.” (App. A-3.)*

After sifting through innumerable cardboard boxes

loaded with seized items — items which the state conceded

were benign, i.e., not crime-related, not of evidentiary

value and not subject to forfeiture —in an act of uncom-

mon benevolence (and, incidentally, to propitiate a visibly

distressed trial judge (S.T. 634, 635)), the state offered to

return the improperly seized items. The trial judge

brusquely issued an order finding ‘‘that the boxes labeled

Defendants’ exhibits 250 through 259 contain documents

which are personal and not crime-related. That speaks for

itself.’’ (S.T. 641-42), Alas, the Petitioner argued that

because this was a general search everything seized

should be suppressed if the exclusionary rule’s deterrent

principle is to have any practical meaning. Cf. Kremen v.

United States, 353 U.S. 346. This argument was rejected

by the trial court and the Georgia Supreme Court, since

“{sjuch items as were unlawfully seized were excluded

from evidence at trial pursuant to a motion to suppress.”

(App. A-3.) Ergo, that cured the evil of the general search

and thus the admission into evidence of items particularly

described in the warrant was ok. (App. A-3.)

This reasoning, however, is flawed. By failing to inform

the magistrate of all the material facts, including the

purpose of the search and its intended scope, the officers

deprived him of the opportunity to exercise

supervision over their conduct and to define the limits of

14

The search warrant issued here was not a general war-

rant on its face. The things to be discovered were de-

scribed with particularity. The question is whether the

search that was conducted, under the auspices of the

statute, was not confined to the lawful scope and became

general. Had the issuing judge been informed of the true

reason for the warrant request and the scope of the search

contemplated, he might have ok’d it, subject to explicit

limitations on the scope of discovery to prevent an overly

intrusive search. But the officers, relying on the statute’s

sweep, withheld that information, arrogating to them-

selves the magisterial function of setting out the dimen-

sious of the search.

It is, of course, not the rule that only evidence un-

covered during a search must invariably be described in

the warrant before it may be seized. Where evidence is

uncovered during a search pursuant to a warrant, the

threshold question must be whether the search was con-

fined to the warrant’s terms. It may not be a general ex-

ploratory search. Gurelski v. United States, 405 F.2d 253,

258 (5th Cir., 1968). As executed here, the warrant be-

came an instrument for conducting a general search.

Under the circumstances, it was not possible to identify

after the fact the discrete items of evidence which would

have been discovered had the officers kept their search

within the bounds permitted by the warrant; and there-

fore all evidence seized during this search under the

auspices of this statute should have been suppressed.

Accord, United States v. Rettig, 589 F.2d 418, 422-423 (9th

Cir. 1978).

15

Trial), it was argued that the word “property” in the

statute, when construed to include private papers, pre-

sented the additional question of reasonableness. See

Boyd v. United States, 116 U.S. 616. An examination of the

books, papers and personal possessions in a person’s home

j8 an especially sensitive matter, calling for careful exer-

cise of the magistrate’s judicial supervision and control.

See Stanford v. Texas, 379 U.S. 476. But, because of the

statute’s broad sweep, the officers didn’t bother disclos-

jng their intention; they simply arrogated to themselves

the power to take whatever they wanted.

Conclusion

Even granting the enfeebled state of the Fourth Amend-

ment, O.C.G.A. §16-14-7(f) (formerly Ga. Code Ann.

§26-3405(d)(2) can’t pass constitutional muster.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

16

CERTIFICATE OF SERVICE

I, Charles R. Smith, Petitioners’ counsel of record, and

a member of the Bar of the Supreme Court of the United

States, certify that in accordance with the Rules of the

Supreme Court, I have this day served three true and

correct copies of this Petition for Writ of Certiorari upon

Respondent, by depositing three copies of this Petition in

the United States Mail, with adequate postage and ad-

dressed to:

MICHAEL J. BOWERS

Attorney General

132 State Judicial Bldg.

40 Capitol Square

Atlanta, Georgia 30334

H. ALLEN MOYE

Asst. District Attorney

Fulton County Courthouse

Seventh Floor

136 Pryor St.

Atlanta, Georgia 30335

This 25th day of August, 1983.

Attorney for Petitioners

APPENDIX A

In the Supreme Court of Georgia

Decided: June 1, 1983

39385. GUY WALLER ET AL. v. THE STATE.

CLARKE, Justice.

Appellants and others were indicted and charged with

violation of the Georgia Racketeer Influenced and Cor-

rupt Organizations Act (OCGA § 16-14-1, et seq.) and

convicted of the offenses of commercial gambling and

communicating gambling information. This appeal does

not concern the sufficiency of the evidence except in re-

gard to the question of venue.

The evidence at trial showed that appellants partici-

pated, with hundreds of others on a lower level, in a

lottery ring which involved gambling on the volume of

stocks and bonds traded on the New York Stock Ex-

change. The information was transmitted by telephone

and telecopier and stored in a microcomputer maintained

by appellant Cole.

(1) The basis of this court’s jurisdiction is that appel-

lant has made a facial attack on OCGA § 16-14-7(f) of the

forfeiture provision of the Georgia Racketeer Influenced

and Corrupt Organizations Act (hereinafter RICO). The

State argues that jurisdiction is not in this court because

the constitutional challenge was not properly raised in the

trial court and because appellants have no standing to

raise the constitutionality of the forfeiture procedure since

the evidence presented at trial was seized pursuant to

search warrants. We find that the constitutional issue was

properly raised at trial and that appellants have standing

to raise it on appeal.

la

2a

Appellants contend that the statute is unconstitutional

because it authorizes seizure of ‘‘jajll property of every

kind used or intended for use in the course of, derived

from, or realized through a pattern of racketeering activi-

ty” prior to filing a complaint for a RICO in rem for-

feiture proceeding and prior to the obtaining of a writ of

seizure. Appellants insist that this statute is on its face

violative of the Fourth Amendment to the United States

Constitutien.

We find that the provision in question, OCGA § 16-14-7

(f) is constitutional on its face. A seizure under this sec-

tion is allowed only in carefully prescribed circumstances,

The seizure must be incident to a lawful arrest, search or

inspection, and the officer must have probable cause to

believe that the property is subject to forfeiture or that

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

is no Fourth Amendment problem with the seizure or the

fruits of a lawful search or inspection. The statute on its

face provides that the search or inspection must be lawful.

This requires that the search be pursuant 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. For a discussion of

exigent circumstances, see New York v. Belton, 453 U.S.

454 (101 SC 2860, 69 LE2d 768) (1981); Chimel v. Cali-

fornia, 395 U.S. 752 (89 SC 2034, 23 LE2d 685) (1969);

Warden v. Hayden, 387 U.S. 294 (87 SC 1642, 18 LE2d

782) (1967).

Seizure of contraband, evidence, or weapons not listed

on a search warrant by an officer executing an arrest war-

rant or search warrant does not violate the due process

clause of the Fourteenth Amendment even though there

3a

has been no notice and hearing. Calero-Toledo v. Person

Yacht Leasing Co., 416 U.S. 663 (94 SC 2080, 40 LE2d

452) (1974). See also Fuentes v. Shevin, 407 U.S. 87 (92

SC 1983, 32 LE2d 556) (1972).

(2) The next question before us is whether the statute

was applied in an unconstitutional manner as to appel-

lants. According to appellants, officers acting under search

Warrants went far beyond the scope of the warrants in

conducting general searches and seizing all manner of

personal items including jewelry, letters, school report

cards, unopened strong boxes and other items which were

then sifted at leisure by the police in a search for evidence.

Such items as were unlawfully seized were excluded from

evidence at trial pursuant to a motion to suppress. It is

appellant’s contention that because certain property

seized was outside the warrant, all of the evidence should

have been suppressed. Appellants rely on Marron v.

United States, 275 U.S. 192 (48 SC 74, 72 LE2d 231)

(1927), United States v. LaVallee, 391 F.2d 123 (2d Cir.

1968), and United States v. Pinero, 329 F.Supp. 992 (S.D.

N.Y. 1971), in support of their position. In Marron v.

United States, the Court held that under the Fourth

Amendment a search warrant describing intoxicating

liquors and articles for their manufacture did not au-

thorize seizure of a ledger and bills of accounts. However,

finding that the ledger and bills were seized incident to a

lawful arrest, the Court affirmed the appellant’s convic-

tion. In United States v. LaVallee and United States v.

Pinero, the warrant did not describe the items at issue.

Since the search was not conducted under any exception

to the warrant requirement of the Fourth Amendment,

the items not described in the warrant were suppressed.

These cases stand for the rule that evidence improperly

seized is inadmissible. There is no requirement that where

4a

evidence has been lawfully seized it must be suppressed if

officers unlawfully seized other material, unless the un-

lawfully seized evidence led to the discovery of the evi-

dence which was admitted.

(3) Appellants contend that their convictions should

be overturned because the term of court at which they

should have been tried under their demands for a speedy

trial had expired. OCGA § 17-7-170(b) (formerly Code

Ann. § 27-1901) provides: “If the person is not tried

when the demand is made or at the next succeeding

regular court term thereafter, provided at both court

terms there were juries impaneled and qualified to try

him, he shall be absolutely discharged and acquitted of

the offense charged in the indictment or accusation.”’ For

demand to cause the time to begin to run there must be a

jury impaneled and qualified to try the defendant.

DeKrasner v. State, 54 Ga.App. 41 (187 SE 402) (1936).

Here the trial court found that there was no jury im-

paneled to try the case during the term in which appel-

lants filed their demands. Consequently, the time allowed

by the two-term trial requirement did not begin to run

until the term following that during which the demand

was filed. In the absence of clear and convincing evidence

to the contrary, we will not disturb the trial court’s find-

ing that no jury qualified to try appellants was impaneled

during the term in which the demand was filed. Wilson v.

State, 156 Ga.App. 53 (274 SE2d 95) (1980). See also,

State v. McDonald, 242 Ga. 487 (249 SE2d 212) (1978).

(4) In their next enumeration of error appellants com-

plain that the trial court erred in ordering the courtroom

closed during the hearing on the motion to suppress. Ap-

pellants insist that this constitutes a violation of their

rights under our holding in R. W. Page Corp. v. Lumpkin,

5a

249 Ga. 576 (292 SE2d 815) (1982). In the hearing here,

information was revealed which was potentially harmful

to others, would tend to violate the privacy of others, and

might prejudice other potential defendants. Under these

circumstances, the court balanced appellants’ 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 ge.erally to further the administration of justice.”

Lowe v. Sette, 141 Ga.App. 433, 435 (233 SE2d 807)

(1977). We find that appellants’ Sixth Amendment right

to a public trial was not violated. There is some question

whether state or federal law would have required that the

wiretap information be revealed only in a closed court-

room. OCGA § 16-11-64(8); 18 U.S.C.A. § 2517. We need

not reach this question since the thrust of appellants’ ar-

gument is that the court failed to follow the procedure

announced in R. W. Page Corp. v. Lumpkin, supra. This

argument has no merit since the hearing in question oc-

curred before that case was decided and before the pro-

cedural requirements set forth took effect.

(5) Appellants allege error in the admission of evidence

gathered by electronic surveillance in counties other than

Fulton County pursuant to warrants obtained in Fulton

County and in the court’s denial of appellants’ motion to

amend their motion to suppress to reflect facts in support

of this allegation. Since we find that the amended motion

to suppress was not timely made, we need not address the

question whether the evidence should have been admitted.

OCGA § 17-5-30 (former Code Ann. § 27-313) provides

that a motion to suppress the fruits of an unlawful search

and seizure shall be in writing and state facts showing

that the search and seizure was unlawful. Although there

6a

is no time limit set out in the statute for the filing of a

motion to suppress, the statute has been interpreted as

requiring that the motion be made before the issue is

joined. Perryman v. State, 149 Ga.App. 54 (253 SE2d

444) (1979); State v. Shead, 160 Ga.App. 260 (286 SE2d

767) (1981). We interpret this to mean before the defen-

dant enters his written plea. Although not controlling

here, the federal wiretap statute provides that a motion to

suppress the fruits of an illegal wiretap be made “‘. . . be-

fore the trial, hearing or proceeding unless there as no

opportunity to make such motion or the person was not

aware of the grounds of the motion.” 18 U.S.C.A. § 2518

(10) (a).

in the present case the trial judge, after hearing, specifi-

cally found that the amended motion was made after issue

was formally joined and without any showing of good

cause. We find no error in the court’s refusal to grant the

motion to amend.

(6) Appellants assert that certain evidence which the

state discovered through electronic surveillance pursuant

to OCGA § 16-11-64 should not have been admitted in

evidence because it had been disclosed to the Federal

Bureau of Investigation, the Georgia Bureau of Investi-

gation, the Organized Crime Prevention Council and the

Internal Revenue Service. In support of this position,

appellants point to OCGA § 16-11-64(b)(8), which limits

the state’s right to publish information obtained under

an electronic surveillance warrant ‘“‘other than that neces-

sary and essential to the preparation of and actual prose-

cution for the crime specified in the warrant... .’’ The

section then mandates that should a prohibited publica-

tion occur, the published information may not be ad-

mitted into evidence.

7a

The state counters with the argument that no violation

occurred here because federal law authorizes this type

information be disclosed to other investigative or law en-

forcement officers to the extent that such disclosure is

appropriate to the proper performance of the official

duties of the officer making or receiving the disclosure.

18 U.S.C. 2517(1). The state also cites Morrow v. State,

147 Ga.App. 395 (249 SE2d 110) (1978), cert. den. 440

U.S. 917 (1979), and Coz v. State, 152 Ga.App. 453 (263

SE2d 238) (1979). In these cases the Court of Appeals

held that the disclosure of such information to other law

enforcement officers does not cause the information and

evidence to be inadmissible.

In the case before us, the disclosure of the information

was specifically authorized by a court order which cited

both the state and federal statutes and listed the agencies

to whom the disclosure could be made. The import of the

order is that the superior court judge entering the order

concluded that the sharing of information between law

enforcement agencies was in fact necessary and essential

to the preparation and actual prosecution for the crime

specified in the warrant. In view of the fact that this pro-

secution is for violations of the statute aimed at organized

crime, it is reasonable to find that organized efforts of law

enforcement agencies are essential and necessary. This

finding is supported by the clear language of OCGA

§ 16-14-2(b), which sets forth the intent of the General

Assembly in enacting the RICO statute, to impose sanc-

tions against “an interrelated pattern of criminal sseibukyl

the motive or effect of which is to derive pecuniary gain

Our interpretation of the General Assembly’s intent to

foster cooperation between law enforcement agencies as

necessary to the prosecution of organized crime is further

borne out by a recent amendment to the RICO statute

8a

authorizing reciprocal agreements with the chief prose-

cutors of any jurisdictions having substantially similar

statutes. OCGA § 16-14-10(b), Ga.L. 1982, p. 1385, § 12.

(7) Appellants’ seventh, eighth, ninth and tenth

enumerations of error deal with appellants’ claim that the

state used straw ‘‘co-defendants”’ as informants at trial in

spite of appellants’ written demand before arraignment

that the state disclose such information. The conversa-

tions between investigative officers and the informants

were recorded and reviewed by the trial judge, who found

that the tapes corroborated the testimony of the officers

that no defense tactics were revealed and that no prose-

cutorial misconduct occurred. As the state points out, the

only relief sought by appellants was disclosure of the in-

formants. At the time of the hearing on the motion to

suppress, the state indicated that the names of the inform-

ants had been disclosed and that the informants had been

shown no special treatment. While we share the trial

court’s concern that the police tactics used here could

lead to abuse, we find no error in his conclusion that no

abuse of appellants’ rights occurred in this case.

(8) Appellants complain that sworn oral testimony

outside the affidavit was considered by the magistrate

who authorized the wiretap. There is no merit to this

enumeration since the magistrate issuing the search war-

rant may consider sworn oral evidence outside the affi-

davit to establish probable cause. Simmons v. State, 233

Ga. 429 (211 SE2d 725) (1975); Coz v. State, 152 Ga. App.

453 (263 SE2d 238) (1979). See also 18 U.S.C.A. § 2518(2).

We decline counsel’s invitation, as did the Court of

Appeals in Coz, supra, to adopt Rule 4(c), F.R.Cr.P.

which requires recordation of sworn oral testimony.

(9) The contention that the court erred in limiting

9a

cross-examination of witnesses in the hearing in the

motion to suppress is without merit. As the United States

Supreme Court noted in Aquilar v. Texas, 378 U.S. 108,

109, n.1 (84 SC 1509, 12 LE2d 723) (1964). “It is elemen-

tary that in passing on the validity of a warrant, the re-

viewing court may consider only information brought to

the magistrate’s attention.’”’ Although appellants also

complain that the affiant was allowed to testify to the

facts not in the affidavit, in fact, the record shows that

affiants’ testimony was limited to information presented

to the magistrate.

(10) The trial court did not err in finding probable

cause for the magistrate to issue the warrants despite

certain mistakes of fact in the affidavit. There being

sufficient information to support a finding of probable

cause even discounting the mistaken information, the

court did not err in finding that the affidavit was sufficient.

Franks v. Delaware, 438 U.S. 154 (98 SC 2674, 57 LE2d

667) (1978).

(11) Following a recess in the suppression hearing a

witness stated that before proceeding with his testimony

he needed to clarify testimony given earlier. He stated

that the review of his investigative report and his affi-

davit during the recess “cleared my mind.” Defense

counsel asked if the report were available, and the wit-

ness replied that it was not, that it was in the possession

of the district attorney. Defense counsel moved for pro-

duction of the report, and the court denied the motion.

Appellants argue that they were entitled to see the inves-

tigative report from which the witness refreshed his

recollection.

The rule in Georgia is that even had the witness had

the report before him on the stand, the defendant could

10a

not have procured the report as a matter of right simply

by virtue of the fact that the witness used it to refresh

his recollection. Williams v. State, 250 Ga. 664 (____ SE2d

___.) (1983). “The defendant had no right to examine the

witness’ report which was used to refresh his memory and

which was not in evidence.” Id. at 665. See also Jackson v.

State, 242 Ga. 692 (251 SE2d 282) (1978). It is true that

this rule has been criticized as interferring with defen-

dant’s right to a thorough and sifting cross-examination.

See dissent of Hill, C.J., Williams v. State, supra. How-

ever, in the present case, where the witness refreshes his

recollection prior to taking the stand and has no notes in

his possession, there can be no question that the state is

under no greater: compulsion to produce the report than

if the witness had reviewed it before the trial began. In

order for this report to be discoverable there must have

been some reason other than the fact that it was reviewed

by the witness.

(12) The enumeration of error regarding venue is

deemed abandoned. Rules of the Supreme Court of the

State of Georgia, Rule 45.

Judgment affirmed. All the Justices concur, except Hill,

C.J., and Smith, J., dissent to division 3, Smith, J., dis-

sents to division 5, Smith, J., and Weltner, J., dissent to

division 6, Hill, C.J., and Smith, J., dissent to division 11.

Gregory, J., concurs in the judgment and concurs specially

in division 11.

lla

In the Supreme Court of Georgia

39385. WALLER, et al v. THE STATE

GREGORY, J., concurring specially.

I concur in the judgment in this case and specially in

division 11. Where a witness on the witness stand uses a

writing or any other thing to refresh his recollection, it

ought to be subject to examination by opposing counsel,

See Chief Justice Hill’s dissenting opinion in Williams v.

State, 250 Ga. 664, 668 (1983). However, where the writ-

ing or other thing is not available in the courtroom access

by counsel must depend upon the rules of discocvery.

APPENDIX B

we <n, 3

RETURN POSTAGE GUARANTEED fe. vw Vy

en tte oe, ee. ee

eo e ir * eee os, aoe* tree *enee,

CLERK SUPREME COURT 2M Lh decide << te ee

506 STATE JUDICIAL BUILDING ee ee Soe eras.

ATLANTA, GEORGIA 30334 one Te ie Se ie a :

\ eo Me . 2 F cas i m

7 AQ. ¥ emmmemantonsade cae ox , ee —< toes

7 Lites a Le

“ATTORNEY AT LAW

ae O cogmag or

lb

, GEORGIA

2b

-Clerk’s Office, Supreme Court of Georgia

atLanta_G/e 8/8 3

The motion for a rehearing was denied abe

case Ng BLAS, Wattle eheal. VA “he

a. a. ~ >. i

v

Yours very truly,

MRS. JOLINE B. WILLIAMS, Clerk

3b

In the Supreme Court of Georgia

39385. WALLER v. THE STATE

HILL, Chief Justice, dissenting.

I dissent to division three (3) of the majority opinion.

See The State v. McDonald, 242 Ga. 487, 489 ( SE2d

) (1978) (Hill, J. dissenting).

I also dissent to division eleven (11). See Williams v.

The State, 250 Ga. 664, 668 ( SE2d ) (1983) (Hill,

C.J., dissenting). There a minority of this court concluded

that “ ... where a state’s witness utilizes a report or

other writing to refresh the witness’ recollection, denying

defense counsel the right to examine such writing consti-

tutes a denial of the right of cross-examination.’”’ In my

view, it makes no difference whether the witness uses the

report to refresh his or her recollection while on the wit-

ness stand, or during a recess in the trial. The result is the

same; the opposing party has been denied the right to a

thorough and sifting cross-examination. This is partic-

ularly true where the district attorney shows the report

to the witness, and the witness, with recollection thus

refreshed, purports to “‘clarify’’ testimony given before

the recess. The reference by the witness to the writing

lends credibility to the “clarification”, which opposing

counsel is denied the opportunity to refute by reference

to the writing. I therefore dissent.

I am authorized to state that Justice Smith joins this

dissent.

APPENDIX C

TRANSCRIPT EXCERPTS OF CLOSURE

COLLOQUY

MR. MOYE: Yes, Your Honor. The third matter,

Your Honor, is a motion that the State has filed, filed on

the 14th of June to close the courtroom to these proceed-

MR. MOYE: I do not ask that the trial be closed Your

Honor. I seek only during the Motion to Suppress Hear-

ing that the Hearing be closed.

THE COURT: Do you wish to be heard?

MR. SHAFER: Yes, Your Honor. Mr. Moye says that

the purpose of this is to avoid any unnecessary publica-

tion. Well, there’s been publication galore.

THE COURT: Now there might have been. But I

can’t make that judgment at this time.

MR. SHAFER: Well, in view of the unnecessary pub-

lication that has already been made and in view of my

clients’ constitutional rights to an open trial, we will not

only not join in the Motion, we oppose it vehemently and

we insist on our constitutional right to an open trial.

THE COURT: Insofar as the Motion is concerned?

MR. SHAFER: As far as every second of this trial.

THE COURT: Including the Motion?

MR. SHAFER: Including the Motion, yes, Sir.

THE COURT: All right.

MR. MOYE: Your Honor, as I understand the law, the

right to a public trial is not unfettered, that it is in some

respects within the discretion of the Court. Of course,

this Court can close a courtroom to protect a witness as

lc

2c

this Court has done. This Court has much discretion on

the matter.

THE COURT: All right, Sir I’m gonna giant your

motion, but I want it understood now when we reach, if

we do reach the trial of the case in chief, you have got an

entirely different situation if you reach that point.

MR. MOYE: If we reach that point Your Honor, I

would have to make a new motion. This covers only the

motion hearing right now.

MR. SHAFER: Do I understand the Court is going to

close these doors and deprive my client of public trial?

THE COURT: Yes, Sir, on the motion.

MR. SHAFER: Respectfully except. . . .

MR. SHAFER: I want to make a record, Your Honor.

I have here several people who are vitally important to

me, since I have no law clerk, who need to be at my beck

* and call so that I can have them run errands, so I can

give them instructions to make telepone calls, obtain

witnesses for me and to do any and all of the myrid of

(sic) things that an attorney needs to do in order to

effectively render assistance of counsel. One of them is

my secretary and my wife. Another one is Mr. Evans and

that is all at the moment. And I respectfully ask that they

be permitted to stay.

MR. MOYE: I have no objection Your Honor, to Mr.

Shafer’s wife and secretary remaining. I do as to Mr.

Evans. He is a part to a different set of proceedings, not

to these proceedings at this time.

THE COURT: Is he a witness?

MR. MOYE: He’s not a witness, he’s not a party, he’s

not a lawyer.

wet) sa a od

3¢

THE COURT: What is his function? He’s not an officer

of the Court.

MR. SHAFER: No, he’s not an officer of the Court.

He’s working for me. He’s going to run errands for me.

APPENDIX D

[Filed in Office, June 14, 1982, Martha Nolan,

Deputy Clerk, Superior Court, Fulton County, Georgia]

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

THE STATE OF GEORGIA, )

Plaintiff | INDICT-

ba > MENT

WALTER LEE EVANS, et. al., NO. A-59256

Defendants |

MOTION

Now comes THE STATE OF GEORGIA by the

District Attorney for the Atlanta Judicial Circuit and

files the within Motion and respectfully shows the court

as follows:

1

During the trial of the above-styled case, The State

anticipates utilizing evidence derived from court-au-

thorized electronic surveillance.

2.

Motions to suppress said evidence have been filed in the

above-styled case and will be heard prior to or during the

trial of same.

must utilize evidence which may involve a reasonable

expectation of privacy of persons other than those in-

dicted in the above-styled case.

1d

iba s 2

2d

WHEREFORE, The State respectfully prays that any

hearing on any motions to suppress evidence secured as a

result of electronic surveillance, whether heard prior to or

during the trial of the within case, in which evidence must

be presented by The State, be closed to the public.

Respectfully submitted,

LEWIS R. SLATON

District Attorney

Atlanta Judicial Circuit

By: H. AtteEn Moye

H. ALLEN MOYE

Assistant District Attorney

BenJAMIN H. OrHuent, III

BENJAMIN H. OEHLERT, III

Assistant District Attorney

Attorneys for Plaintiff

Third Floor Courthouse

136 Pryor Street, S.W.

Atlanta, Georgia 30335

(404) 572-2539