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

Office-Supreme Court, U.S.

y¥ lLED

NO, 83-322 QCT 12 1983

ALES TEVAS,

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1983

CLARENCE COLE, ET AL.,

Petitioners.

¥

STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

BRIEF IN OPPOSITION FOR THE RESPONDENT

132 State Judicial Bldg.

40 Capitol Square, 8.W.

Atlanta, os

(404)

30334

Mary Beto WESTMORELAND

Assistant Attorney General

Counsel of Record for

Respondent

MicHakE. J. Bowers

Attorney General

JaMES P, Gooae, Jr.

Executive Assistant

Attorney General

Marion O. Gorpon

First Assistant

Attorney General

WituraM B. Hitt, Jr.

Senior Assistant

Attorney General

Lewis R. SLATON

District Attorney

H. ALLEN Moye

Assistant District Attorney

QUESTIONS PRESENTED

l.

Whether the trial court properly

ordered the courtroom closed during

the hearing on the motion to suppress.

2.

Whether the Supreme Court of

Georgia properly concluded that

O.C.G.A. § 16-14-7(f£); Ga. Code Ann.

§ 26-3502(d)(2) is constitutional on

its face.

TABLE OF CONTENTS

Page

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

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

REASONS FOR NOT GRANTING THE WRIT . 9

A. THE TRIAL COURT PROPERLY

RULED TO CLOSE THE HEARING

ON THE MOTION TO SUPPRESS

PRIGR TO Tae ss 47's’ % DO

B. THE GEORGIA SUPREME COURT

PROPERLY CONCLUDED THAT

0.C.G.A. § 16-14-7(f£); GA.

CODE ANN. § 26-3405(d) (2)

DOES NOT VIOLATE THE FOURTH

AMENDMENT TO THE UNITED

STATES CONSTITUTION, . . . 14

CONCLUS I ON e. (cee, @. ©. 6 HO, OB) 16 se 2 5

CERTIFICATE OF SERVICE +++ + + + 27

-ii-

et ry: St a eat! bape et Pay heer

Pr Ca elit > © boa oe . a aN

TABLE OF AUTHORITIES

Page

Cases:

Carroll v. United States, 267

Dain ORAS dik ene eee 80

Calero-Toledo v. Pearson Yacht

Leasing Co., 416 U.S. 663 (1974).20

Chimel v. California, 395 U.S. 752

CV Met ts. 6. pees Ube @ & & 6 ene

Chambers v. Maroney, 399 U.S.

. . . . . . ‘ - . + . .20

Kansas City Star, Application of,

666 F.2d 1168 (8th Cir. 1981). .12

Kremen v. United States, 353 U.S.

56) . . . . . . . . =a

Lowe v. State, 141 Ga. App. renee

-E.2a 807 (1977) .. . « edd

Marron v. United States, 275 U.S.

7) . . . . . . . . 7 . ~22

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

(1981) ° ° ° ° ° . . + . . . .19

United States v. Dorfman, 690 F.2d

th Cife 1982). . . 7 . ‘. eas

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

S.E.2a ’ 1983). ° . ’

-iii-

ll

Warden v. a ee 387 U.S.

. . . . 7 .* * . -20

Statutes

cited;

0.C.G.A.

Code

0O.C.G.A.

Ann.

§ 16-11-64(a)(8); Ga.

Ann. § 26-3004(k). . . .4, 10

§ 16-14-7(f£); Ga. Code

§ 26-3405(d)(2) ... .7, 14, 16

19

-iv-

NO. 83-322

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

CLARENCE COLE, ET AL,

Petitioner,

Vv.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI]

TO THE SUPREME COURT OF GEORGIA

BRIEF IN OPPOSITION FOR THE RESPONDENT

PART ONE

STATEMENT OF THE CASE

Petitioners, Clarence Cole, W. B.

Burke, Eula Burke and Archie Thompson,

were was indicted along with numerous

others on February 9, 1982, by the

Grand Jury of Fulton County on charges

of violation of the Georgia Racketeer

¢

: pea

Influenced and Corrupt Organizations

Act. All defendants entered pleas of

not guilty. A trial was begun on June

21, 1982 for the Petitioners and

others. At the conclusion of the

trial, Petitioners were found guilty

of commercial gambling and

communicating gambling information.

Petitioner Eula Burke was sentenced to

five years probation, a $10,000 fine

and twelve months probation on another

charge. (R. 201, 209-210). Petitioner

W. B. Burke was sentenced to five

years with two years to serve, a

$15,000 fine and twelve months

probation on another charge.

Petitioner Colé was sentenced to five

years with three years to serve and

twelve months on another charge.

Petitioner Thompson was sentenced to

five years with two years to serve, a

$10,000 fine and twelve months

probation on another charge.

The facts in the case show that

between June, 1981, and January, 1982,

the various defendants participated in

a gambling organization which

conducted a lottery based on the daily

stock and bond volume on the New York

Stock Exchange. This “lottery” was

conducted in the metropolitan Atlanta

area. Gambling information was

transmitted by way of electronic means

and stored in a microcomputer

maintained by Defendant Clarence Cole.

Prior to trial, a hearing was held

on the motion to suppress. The state

filed a motion on June 14, 1982, to

close the hearings to the public. In

making this motion, the state asserted

that the hearing was going to involve

evidence of a sensitive nature. The

he \

Pa M4 a. ag ahs te f Me eth, Ua gs dex 5 | ‘eg

eee Oe SOT, ee Pe, (ek eee ey) me, eae h. &

litigation on the motion would of

necessity involve the introduction of

evidence which would affect other

individuals not on trial at that time

and individuals not indicted at this

time. A portion of this information

involved certain wire tap evidence.

Under 0.C.G.A. § 16-11-64(a)(8); Ga.

Code Ann. § 26-3004(k), “Any

publication of the information or

evidence obtained under a warrant

issued hereunder other than that

necessary and essential to the

preparation of and actual prosecution

of the crime specified in the warrant

shall be an unlawful invasion of

privacy under this part and shall

cause such evidence and information to

be admissible in any criminal

prosecution.” Therefore, in order to

allow the state to utilize the same

information in subsequent prosecutions

against other individuals, the state

sought to close this portion of the

moton hearing so as not to taint the

evidence and preclude subsequent use

against individuals not then on

trial. The court concluded that if

the evidence was going to be offered

at the trials of other offenders, the

presentation of the evidence at the

hearing on the motion to suppress

would amount to publication and would

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

Attorney Charles Smith agreed with

the observation made by the state and

concurred with the request,

particularly insofar as the motions

were concerned. He did not concur as

to the trial. Attorney Herbert Shafer

opposed the closure and asserted that

he would insist on the constitutional

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

Subsequently, the court granted

the motion to close the proceedings as

to the hearing on the motion to

ounpnliie. Attorney Shafer sought to

have some people remain in the

courtroom, but the trial court ruled

that the statute was very specific,

“And I think that means everybody must

go except the defendants, counsel,

necessary witnesses of course who

appear and the officers of the court.”

(M.T. 14). Attorney Smith further

interposed an objection to Attorney

Shafer's wife remaining in the

courtroom. The court granted the

motion to close the proceedings and

excluded all individuals except those

enumerated by the court.

After the trial and convictions,

the Petitioners and the other

defendants filed a direct appeal to

the Supreme Court of Georgia

challenging, among other things, the

closure of the courtroom and the

constitutionality of 0O.C.G.A.

§ 16-14-7(f£); Ga. Code Ann.

§ 26-3405(d)(2). That court affirmed

the conviction and sentences and

concluded that the particular code

section was constitutional on its face

and did not violate the Fourth

Amendment. The court also concluded

that the statute was not

unconstitutional as applied in this

case. In reviewing the issue of

closure, the court concluded that the

trial court balanced the rights to a

public hearing against the privacy

rights of others and closed the

-7=<-

hearing. Under those principles, the

court concluded that the Sixth

Amendment right to a public trial was

not violated. Waller, et al. v.

State, 251 Ga. 124, _—s S.E.2d

1983). (See Petitioners’ Appendix

A). The motion for rehearing was

denied by that court on June 18,

1983. The instant petition for a writ

of certiorari was then filed in this

Court.

2 5 anes

PART TWO

REASONS FOR NOT GRANTING THE WRIT

A. THE TRIAL COURT PROPERLY

RULED TO CLOSE THE HEARING ON

THE MOTION TO SUPPRESS PRIOR

TO TRIAL.

Petitioners present as the first

issue before this Court a challenge to

the trial court's closure of the

courtroom during the hearing on the

motion to suppress. Petitioners have

asserted that this closure violated

his right to a public trial under the

Sixth Amendment.

At the beginning of the hearing on

the motion to suppress, the state

reasserted the formal motion for

closure because it would be necessary

during the hearing on the motion to

utilize evidence which could involve a

reasonable expectation of privacy of

persons who were not presently on

trial. This motion was made based on

the provisions in O.C.G.A.

§ 16-11-64(a)(8); Ga. Code Ann.

§ 26-3004(k) addressing publication of

wire tap information and subsequent

use of that information in other

prosecutions. The Supreme Court of

Georgia addressed this issue and found

the following:

In the hearing here, information

was revealed which was potentially

harmful to others, would tend to

violate the privacy of others and

might prejudice other potential

defendants. Under these

circumstances, the court balanced

appellants’ rights to a public

hearing on the motion against the

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crn, sh To a “ARS Laeok |

privacy rights of others and

closed the hearing.

Waller v. State, supra.

The Court noted that the trial

court properly exercised its inherent

power “to preserve order and decorum

in the courtroom to protect the rights

of parties and witnesses, and

generally to further the

administration of justice." Lowe v.

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

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

circumstances, the Supreme Court of

Georgia concluded that the

Petitioners’ Sixth Amendment right to

a public trial was not violated.

The trial court was faced with a

situation involving evidence secured

during court-authorized electronic

surveillance. The state had announced

Akin

4. Vala * an ‘oe 3 bo ie ns

oo See » Pe, No i et en eer ee eS

its intention to and did play portions

of this electronic surveillance during

the motion hearing to establish

probable cause. The trial court had

the responsibility to protect privacy

of the defendant and individuals not

then on trial and those individuals

not under indictment at that time.

Due to the fact that the right of

ae”

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privacy is specifically recognized in

the statute authorizing

court-authorized electronic

surveillance, the right of access and

the right to a public trial may be

legitimately limited under the narrow

circumstances presented by the instant

case. See United States v. Dorfman,

Application of Kansas City Star, 666

F.2d 1168 (Sth Cir. 1981).

-12-

%

Based on the particular

circumstances in the instant case,

Respondent submits that the trial

court acted properly in closing the

hearing on the motion to suppress to

protect the privacy of other

individuals not being tried at that

time. In balancing the rights

presented, the court properly

exercised its discretion and did not

violate the Petitioners’ right to a

public trial in the instant case.

Therefore, Respondent submits that no

federal constitutional issue is

presented by this clain.

B. THE GEORGIA SUPREME COURT

PROPERLY CONCLUDED THAT

0.C -G.A. $ 16-14-7(f); GA.

CODE ANN. § 26-3405(d)(2)

DOES NOT VIOLATE THE FOURTH

AMENDMENT TO THE UNITED

STATES CONSTITUTION.

Petitioners assert that 0O.C.G.A.

§ 16-14-7(£); Ga. Code Ann.

§ 26-3405(d)(2) violates the Fourth

Amendment in that it aljows unbridled

discretion to police officers in

executing a search and allegedly

constitutes impermissible delegation

of magisterial duty.

The statute in question is a

subsection of the provisions for

forfeiture of property under the

Racketeer Influenced and Corrupt

Organizations Act (Georgia RICO Act).

Under the section in question, various

provisions are set forth for

forfeiture proceedings. The statute

specifically declares certain property

be subject to forfeiture and sets out

specific procedures for the

forfeiture. The proceeding is one to

which the Georgia Civil Practice Act

applies. The particular subsection of

the statute in question provides as

follows:

Seizure may be effected by a law

enforcement officer authorized to

enforce the penal laws of this

state prior to the filing of the

complaint and without a writ of

seizure if the seizure is incident

to a lawful arrest, search or

inspection and the officer has

probable cause to believe the

property is subject to forfeiture

and will be lost or destroyed if

not seized. Within ten days of

the date of seizure, the seizure

shall be reported by the officer

to the district attorney of the

circuit in which the seizure is

effected; and the district

attorney shall, within thirty days

of receiving notice of seizure,

file a complaint for forfeiture.

The complaint shall state in

addition to the information

acquired in subsection (e) of this

Code section, the date and place

of seizure.

0.C.G.A. § 16-147 (f£); Ga. Code Ann. §

26-3405(d)(2).

The Georgia Supreme Court r

considered the challenge to this 4

; 2

J } *

eee eee ae. PA et eee

particular code section on its face

and noted that a seizure under this

section is allowed only in certain

prescribed circumstances. The seizure

must be pursuant to a lawful arrest,

search or inspection and, further, the

law enforcement officer must have

probable cause to believe that the

property is subject to forfeiture or

the property will be lost or destroyed

if not seized. As the statute

specifically provides on its face that

the search or inspection must be

lawful, there is clearly a requirement

that the search be made either

pursuant to a warrant, incident to a

lawful arrest, or under other exigent

circumstances which would render the

search or inspection lawful.

Therefore, as noted by the Georgia

Supreme Court, by definition the

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statute complies with the Fourth

Amendment. Waller v. State, supra.

The statute in question provides

four conditions precedent to the

seizure of property under this

subsection. The first requirement is

that the seizure be made by a law

enforcement officer authorized to

enforce the penal laws of this state.

This requirement is clearly

constitutional on its face.

The subsection secondly requires

that the seizure be made incident to a

lawful arrest, search or inspection.

As noted by the Supreme Court of

Georgia, the designation of the search

or inspectionas “lawful” is clearly in

compliance with the Fourth Amendment

to the United States Constitution.

In addition to these two

requirements, the seizing officer must

also have probable cause to believe

“that the property is subject to

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

§ 16-14-7(a); Ga. Code Ann.

§ 26-3405(8). In addition, officers

would be authorized to seize other

evidence which is in plain view at the

time the search is executed. Those

officers making an arrest are also

allowed to search persons and their

immediate presence for evidence

without a warrant specifically listing

those particular items. See New York

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

Therefore, an officer who is executing

a valid arrest warrant or a valid

search warrant may seize contraband,

evidence or weapons under the

prescribed circumstances without these

items necessarily being listed on the

search warrant. Items subject to

-19-—

forfeiture may be dealt with in a

similar fashion. See Calero-Toledo v.

Pearson Yacht Leasing Co., 416 U.S.

663 (1974).

~The fourth requirement set forth

by the statute is that the officer

have probable cause to believe that

the property will be lost or destroyed

if not seized. This is similar to the

exigent circumstances requirement

utilized in standard search and

seizure situations. Exigent é

circumstances have been recognized in

various settings, including the

automobile exception created in

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

(1925) and subsequently followed in

Chambers v. Maroney, 399 U.S. 42

(1970). Exigent circumstances have

also been recognized in the "hot

pursuit" exception set forth in Warden

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DL RO Se

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

search incident for the arrest

exception in Chimel v. California, 395

U.S. 752 (1964).

Respondent submits that as the

four conditions precedent set forth in

this subsection do not violate the

Fourth Amendment to the United States

Constitution, the code section in

question is clearly constitutional on

its face.

Petitioners have also asserted

that the court should have suppressed

all evidence seized rather than only

that evidence which the court

concluded had been improperly seized.

This argument was made based on an a

assertion that this was a general ;

search and everything seized should be ras

suppressed pursuant to the he a

exclusionary rule.

i

LA

The Georgia Supreme Court noted

that such items as were unlawfully

seized were excluded from evidence

pursuant to the motion to suppress.

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

192 (1927), cited by the Petitioners,

it was concluded that a search warrant

describing intoxicating liquors and

articles for the manufacturer did not

specifically authorize a seizure of a

ledger and bills of account. The

court went on to find, however, that

the ledger and bills were seized

incident to a lawful arrest;

In Kremen v. United States, 353 |

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

warrants in existence. The search of 5

the persons and the premises was made

based on arrest warrants for only two ae

of the persons present. Under those

circumstances, it was concluded that

the evidence was not seized from

persons for whom the officers had

arrest warrants; therefore, the

evidence was not legally seized.

The Petitioners’ reasoning that

all items and information seized

pursuant to a valid search warrant

should be excluded when the officers

may have gone beyond the scope of the

search warrant is not justified under

the instant circumstances because it

is clearly a deviation from the

purposes intended to be served by the

exclusionary rule. The purposes of

the exclusionary rule and the intent

of the Fourth Amendment are served by

excluding evidence improperly seized,

not by excluding evidence which was

properly seized at the same time.

Therefore, Respondent asserts that no

such requirement should be

established. Furthermore, contrary to

the assertions of the Petitioners,

this did not deprive the Magistrate of

the opportunity to exercise meaningful

supervision and define the limits of

the warrant. As evidence was excluded

which was allegedly illegally seized,

the question as to the Magistrate's

supervision is simply not presented.

Therefore, Respondent submits that

the code section attacked in the

instant petition does not violate the

Fourth Amendment either on its face or

as applied to the Petitioners in the

instant case. Therefore, no federal

constitutional question is presented

for review by this Court.

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* ; . ; ; thes &

TT PLO, ceatt He ke PR ee ee ee tS en a 2)

CONCLUSION

For the above and foregoing

reasons, Respondent respectfully

requests this Court deny the petition

for a writ of certiorari filed on

behalf of the Petitioners.

Respectfully submitted,

MICHAEL J. BOWERS

Attorney General

JAMES P. GOOGE, JR.

Executive Assistant

Attorney General

irst Assistant Attorney

General

General

Assistant Attorney

District Attorney

H. ALLEN MOYE

Assistant Distrct

Attorney

CERTIFICATE OF SERVICE

I, MARY BETH WESTMORELAND, a4

member of the bar of the Supreme Court

of the United States’and counsel of

record for the Respondent, hereby

certify that in accordance with the

rules of the Supreme Court of the

United States, I have this day served a

true and correct copy of this Brief in

Opposition for the Respondent upon the

Petitioners by depositing three copies

of same in the United States mail with

proper address and adequate postage

thereto to:

Charles R. Smith

P. O. Box 1140

Cumming, Georgia 30130

This ai day of October, 1983.

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