Syllabus

WALLER v. GEORGIA

CERTIORARI TO THE SUPREME COURT OF GEORGIA

No. 83-321. Argued March 27, 1984-Decided May 21, 1984* 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. 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

*Together with No. 83-322, Cole et al. v. Georgia, also on certiorari to the same court.

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.

POWELL, J., delivered the opinion for a unanimous Court.

Herbert Shafer argued the cause for petitioners in both cases. With him on the briefs were Charles Lister, Charles R. Smith, Burt Neuborne, and Charles S. Sims.

Mary Beth Westmoreland, Assistant Attorney General of Georgia, argued the cause for respondent in both cases. With her on the brief were Michael J. Bowers, Attorney General, James P. Googe, Jr., Executive Assistant Attorney General, Marion O. Gordon, First Assistant Attorney General, William B. Hill, Jr., Senior Assistant Attorney General, Lewis R. Slaton, and H. Allen Moye.†

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

+Fred E. Inbau, Wayne W. Schmidt, James P. Manak, David Crump, and Daniel B. Hales filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging affirmance.

Briefs of amici curiae were filed for the United States by Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Alan I. Horowitz; and for the State of Arizona by Robert K. Corbin, Attorney General.

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

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). 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." App. 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. Id., at 14a. Over objection, 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

'The statute barring publication is part of a section authorizing wiretaps pursuant to warrant. At the time of trial, the statute read: "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 for the crime specified in the warrant shall be an unlawful invasion of privacy under this Chapter, and shall cause such evidence and information to be inadmissible in any criminal prosecution." Ga. Code Ann. § 26–3004(k) (1977 and Supp. 1981) (subsequently recodified as § 16-11-64(b)(8)).

Counsel for petitioners Waller, Thompson, Eula Burke, and W. B. Burke lodged an objection to closing the hearing. Counsel for petitioner Cole concurred in the prosecution's motion to close the suppression hearing. App. 14a, 15a. Respondent argues that Cole is precluded from challenging the closure. The Georgia Supreme Court appears to have considered the objections of all the petitioners on their merits. 251 Ga. 124, 126-127, 303 S. E. 2d 437, 441 (1983). Cole's claims in this Court are identical to those of the others. Since the cases must be remanded, we remand Cole's case as well. The state courts may determine on remand whether Cole is procedurally barred from seeking relief as a matter of state law.

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 (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

'Petitioners advance two Fourth Amendment arguments, both of which may be disposed of summarily. First, they assert that a forfeiture section