Waller v. Georgia

In the latter half of 1981, Georgia police began tapping the phones of individuals they suspected of involvement in an illegal lottery operation. This was long before that state had a legal, state-run lottery, and the particular scheme operated by the individuals in this case involved gambling on the volume of stocks and bonds traded on the New York Stock Exchange. In early January of 1982, state law enforcement officials executed search warrants simultaneously at a number of locations, including the homes of the individuals who would become the petitioners in Waller v. Georgia. Along with 35 others, these individuals were indicted and charged under the Georgia Racketeer Influenced and Corrupt Organizations (Georgia RICO) Act of 1982, as well as under Georgia statutes regarding illegal gambling.

Before the trial, the petitioners, who were set to be tried separately in a series of cases that involved 13 other defendants, moved to suppress the police wiretaps and other evidence seized during the searches. The reason for this was that the warrants authorizing the wiretaps were not supported by probable cause, normally required by police to conduct such surveillance, and were based instead on vague and overly general information. Furthermore, the petitioners held that these taps were not conducted under appropriate supervision, and that the searches following them were indiscriminate, as well as "exploratory and general." The state of Georgia then moved to close the hearing on the motion to suppress, meaning that the public would not be able to witness the proceedings. In its closure motion, the state held that in order to justify its seizure of evidence derived from the wiretaps, it would have to introduce evidence which could infringe on the privacy of individuals other than the defendants.

The state made its reasoning more clear when on 21 June 1982, the court--having impaneled and then excused a jury--heard the closure and suppression motions. Under the Georgia wiretap statute, the state's attorney argued any use of information that was not "necessary and essential" would constitute inadmissible evidence. More specifically, the wiretaps would "involve" individuals already indicted but not on trial at that point, as well as others who had not been indicted at all. The state's purpose was not to protect the indicted individuals' right to a fair trial, or the unindicted persons' right to privacy; rather, Georgia's prosecutor noted that the presentation of these wiretaps in open court would cause the evidence to be "tainted," and thus unavailable for use in future prosecution cases. The trial court agreed and, over objection from the petitioners, ordered the suppression hearing closed to persons other than the parties involved, the lawyers, court personnel, and witnesses.

The hearings that followed lasted seven days, but less than two-and-a-half hours of that time was devoted to playing the tapes of intercepted phone conversations. As it turned out, the voices recorded on the tapes included those of some who were not then on trial, but had been indicted. Though a single unindicted individual was mentioned by the others in one phone call, there was no one not currently under indictment. Throughout the remainder of the trial, the court's attention was directed to an examination of the procedures used to obtain and execute the search warrants and wiretap authorizations, as well as those used in preserving the tape recordings, and to the petitioners' allegations of misconduct on the part of police and prosecutors. All of these proceedings could, therefore, have been attended by the public without impinging on the matter addressed with regard to the tapes and the various indicted and unindicted individuals included on them. The court having agreed with the state's admission that ten boxes of papers it had seized during the searches were personal in nature, and unrelated to the crime in question, it ordered them suppressed, but refused to suppress other files.

Following trial by jury in an open court, the petitioners were acquitted of charges under the Georgia RICO statute, but not the charges of commercial gambling and communicating gambling information. Just before the trial of the other indicted individuals, the court released the transcript of the suppression hearing to the public.

On appeal to the Georgia Supreme Court, the convictions were upheld in 1983. With regard to the issue of an open trial, that court ruled that the trial court had properly balanced rights under Georgia law and the Sixth Amendment--the right to a fair trial on the one hand, and the right to privacy on the other. The petitioners then took the case to the U.S. Supreme Court, at which time briefs of amici curiae urging affirmance were filed by the U.S. solicitor general, the Arizona attorney general, and individuals representing Americans for Effective Law Enforcement, Inc., et al.