Waller v. Georgia Cole v. Georgia, Nos. 83-321

• Court: United States Supreme Court
• Writing for the Court: POWELL
• Citation: 467 U.S. 39,104 S.Ct. 2210,81 L.Ed.2d 31
• Parties: Guy WALLER, Petitioner, v. GEORGIA. Clarence COLE et al., Petitioner, v. GEORGIA
• Docket Number: 83-322,Nos. 83-321
• Decision Date: 21 May 1984

467 U.S. 39 104 S.Ct. 2210 81 L.Ed.2d 31 Guy WALLER, Petitioner,

v.

GEORGIA. Clarence COLE et al., Petitioner, v. GEORGIA.

Nos. 83-321, 83-322.

Supreme Court of the United States

Argued March 27, 1984. Decided May 21, 1984. Syllabus

After court-authorized wiretaps of telephones by Georgia police revealed a large lottery operation, the police executed search warrants at numerous locations, including petitioners' homes. Petitioners and others were then indicted for violating the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act and other state gambling statutes. Prior to trial, petitioners moved to suppress the wiretaps and evidence seized during the searches. The State moved to close the suppression hearing to the public, alleging that unnecessary "publication" of information obtained under the wiretaps would render the information inadmissible as evidence, and that the wiretap evidence would "involve" the privacy interests of some persons who were indicted but were not then on trial, and some who were not then indicted. The trial court agreed, finding that insofar as the wiretap evidence related to alleged offenders not then on trial, the evidence would be tainted and could not be used in future prosecutions. Accordingly, over petitioners' objections, the court ordered the suppression hearing closed to all persons other than witnesses, court personnel, the parties, and the lawyers. The suppression hearing lasted seven days, but less than 21/2 hours were devoted to playing the tapes of the intercepted telephone conversations, and few of them mentioned or involved parties not then before the court. The case was then tried before a jury in open court, and petitioners were acquitted under the RICO Act but convicted under the other statutes. The Georgia Supreme Court affirmed.

Held:

1. Under the Sixth Amendment, any closure of a suppression hearing over the objections of the accused must meet the following tests: the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; the closure must be no broader than necessary to protect that interest; the trial court must consider reasonable alternatives to closing the hearing; and it must make findings adequate to support the closure. Cf. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629. Pp. 44-47.

2. Under the above tests, the closure of the entire suppression hearing here plainly was unjustified. The State's proffer was not specific as

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to whose privacy interests might be infringed if the hearing were open to the public, what portions of the wiretap tapes might infringe those interests, and what portion of the evidence consisted of the tapes. As a result, the trial court's findings were broad and general and did not purport to justify closure of the entire hearing. And the court did not consider alternatives to immediate closure of the hearing. Pp. 48-49.

3. The case is remanded to the state courts to decide what portions, if any, of a new suppression hearing may be closed to the public in light of conditions at the time of that hearing. A new trial need be held only if a new, public suppression hearing results in the suppression of material evidence not suppressed at the first trial or in some other material change in the positions of the parties. Pp. 49-50.

251 Ga. 124, 303 S.E.2d 437, reversed and remanded.

Herbert Shafer, Atlanta, Ga., for petitioners.

Mary Beth Westmoreland, Atlanta, Ga., for respondent.

Justice POWELL delivered the opinion of the Court.

These cases require us to decide the extent to which a hearing on a motion to suppress evidence may be closed to the public over the objection of the defendant consistently

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with the Sixth and Fourteenth Amendment right to a public trial.

I

Acting under court authorization, Georgia police placed wiretaps on a number of phones during the last six months of 1981. The taps revealed a large lottery operation involved in gambling on the volume of stocks and bonds traded on the New York Stock Exchange. In early January 1982, law enforcement officers simultaneously executed search warrants at numerous locations, including the homes of petitioners. Petitioners and 35 others were indicted and charged with violating the Georgia Racketeer Influenced and Corrupt Organizations (Georgia RICO) Act, Ga.Code Ann. §§ 16-14-1 to 16-14-15 (1982 and Supp.1983), and with commercial gambling and communicating gambling information in violation of Ga.Code Ann. §§ 16-12-22 and 16-12-28 (1982).

Prior to the separate trial of petitioners and 13 other defendants, petitioners moved to suppress the wiretaps and the evidence seized during the searches. They asserted, inter alia, that the warrants authorizing the wiretaps were unsupported by probable cause and based on overly general information, that the taps were conducted without adequate supervision, and that the resulting searches were indiscriminate, "exploratory and general." App. 11a. The State moved to close to the public any hearing on the motion to suppress. The closure motion stated that in order to validate the seizure of evidence derived from the wiretaps the State would have to introduce evidence "which [might] involve a reasonable expectation of privacy of persons other than" the defendants. Id., at 6a.

On June 21, 1982, a jury was empaneled and then excused while the court heard the closure and suppression motions. The prosecutor argued that the suppression hearing should be closed because under the Georgia wiretap statute "[a]ny publication" of information obtained under a wiretap warrant

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that was not "necessary and essential" would cause the information to be inadmissible as evidence. See Ga.Code Ann. § 16-11-64(b)(8) (1982).¹ The prosecutor stated that the evidence derived in the wiretaps would "involve" some persons who were indicted but were not then on trial, and some persons who were not then indicted. He said that if published in open court, the evidence "[might] very well be tainted." Id., at 13a. The trial court agreed. It found that insofar as the wiretap evidence related to alleged offenders not then on trial, the evidence would be tainted and could not be used in future prosecutions. Id., at 14a. Over objection,² the court ordered the suppression hearing closed to all persons other than witnesses, court personnel, the parties, and the lawyers.

The suppression hearing lasted seven days. The parties do not dispute that less than 21/2 hours were devoted to playing tapes of intercepted telephone conversations. The intercepted conversations that were played included some persons who were not then on trial, but no one who had not been named in the indictment; one person who had not been

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indicted was mentioned in the recorded calls. The remainder of the hearing concerned such matters as the procedures used in obtaining and executing the search warrants and wiretap authorizations, the procedures followed in preserving the tape recordings, and certain allegations of police and prosecutorial misconduct.

Agreeing with the State's concession that 10 boxes of documents seized during the searches were "personal, no[n]crime related," Tr. of Suppression Hearing 635, the trial court ordered them suppressed, id., at 642; App. 19a. It refused to suppress a comparable amount of other material. The case was then tried to the jury in open court. Petitioners were acquitted of the charges under the Georgia RICO statute, but were convicted of commercial gambling and communicating gambling information. Prior to the trial of the remaining persons named in the indictment, the transcript of the suppression hearing was released to the public.

The Georgia Supreme Court affirmed the convictions. 251 Ga. 124, 303 S.E.2d 437 (1983). On the open-trial issue, the court ruled that the trial court had properly balanced petitioners' rights to a public hearing against the privacy rights of others under Georgia law and the Sixth Amendment. Id., at 126-127, 303 S.E.2d, at 441. We granted certiorari to decide whether the defendant's Sixth Amendment right to a public trial applies to a suppression hearing. 464 U.S. 959, 104 S.Ct. 390, 78 L.Ed.2d 334 (1983). We hold that it does, and that the trial court failed to give proper weight to Sixth Amendment concerns. Accordingly, we reverse.

II

These cases present three questions: First, does the accused's Sixth Amendment right to a public trial extend to a suppression hearing conducted prior to the presentation of evidence to the jury? Second, if so, was that right violated here? Third, if so, what is the appropriate remedy? ³

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A

This Court has not recently considered the extent of the accused's right under the Sixth Amendment to insist upon a public trial, and has never considered the extent to which that right extends beyond the actual proof at trial. We are not, however, without relevant precedents. In several recent cases, the Court found that the press and public have a qualified First Amendment right to attend a criminal trial. Globe Newspaper Co. v. Superior Court for Norfolk County,

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457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). We also have extended that right not only to the trial as such but also to the voir dire proceeding in which the jury is selected. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). Moreover, in an earlier case in this line, Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), we considered whether this right extends to a pretrial suppression hearing. While the Court's opinion did not reach the question, id., at 392, 99 S.Ct., at 2911, a majority of the Justices concluded that the public had a qualified constitutional right to attend...