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

* 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).
3

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).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 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.
6

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
8

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

* 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, 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 such hearings, id., at
397, 99 S.Ct., at 2914 (POWELL, J., concurring) (basing right on First
Amendment); id., at 406, 99 S.Ct., at 2919 (BLACKMUN, J., joined by
BRENNAN, WHITE, and MARSHALL, JJ., dissenting in part) (basing right on
Sixth Amendment).
10

In each of these cases the Court has made clear that the right to an open trial
may give way in certain cases to other rights or interests, such as the
defendant's right to a fair trial or the government's interest in inhibiting
disclosure of sensitive information. Such circumstances will be rare, however,
and the balance of interests must be struck with special care. We stated the
applicable rules in Press-Enterprise:

11

"The presumption of openness may be overcome only by an overriding interest

based on findings that closure is essential to preserve higher values and is
narrowly tailored to serve that interest. The interest is to be articulated along
with findings specific enough that a reviewing court can determine whether the
closure order was properly entered." 464 U.S., at 510, 104 S.Ct., at 824.

12

Accord, Globe Newspaper Co., supra 457 U.S., at 606-607, 102 S.Ct., at 26202621; Richmond Newspapers, supra, 448 U.S., at 580-581, 100 S.Ct., at 28292830 (opinion of BURGER, C.J.); Gannett, 443 U.S., at 392-393, 99 S.Ct., at
2911-2912 (semble); id., at 400-401, 99 S.Ct., at 2916-2917 (POWELL, J.,
concurring); id., at 440-446, 99 S.Ct., at 2936-2939 (BLACKMUN, J.,
dissenting in part). As noted, the analysis in these cases has proceeded largely
under the First Amendment. Nevertheless, there can be little doubt that the
explicit Sixth Amendment right of the accused is no less protective of a public
trial than the implicit First Amendment right of the press and public. The
central aim of a criminal proceeding must be to try the accused fairly, and "
[o]ur cases have uniformly recognized the public-trial guarantee as one created
for the benefit of the defendant." Gannett, 443 U.S., at 380, 99 S.Ct., at 2905.

13

" ' "The requirement of a public trial is for the benefit of the accused; that the
public may see he is fairly dealt with and not unjustly condemned, and that the
presence of interested spectators may keep his triers keenly alive to a sense of
their responsibility and to the importance of their functions. . . ." ' " Ibid.
(quoting In re Oliver, 333 U.S. 257, 270, n. 25, 68 S.Ct. 499, 506, n. 25, 92
L.Ed. 682 (1948), in turn quoting T Cooley, Constitutional Limitations 647

(8th ed. 1927)). 4

14

In addition to ensuring that judge and prosecutor carry out their duties
responsibly, a public trial encourages witnesses to come forward and
discourages perjury. See In re Oliver, supra, at 270, n. 24, 68 S.Ct. 499, 506, n.
24, 92 L.Ed. 682; Douglas v. Wainwright, 714 F.2d 1532, 1541 (CA11 1983),
cert. pending, Nos. 83-817, 83-995; United States ex rel. Bennett v. Rundle,
419 F.2d 599, 606 (CA3 1969).

15

These aims and interests are no less pressing in a hearing to suppress

wrongfully seized evidence. As several of the individual opinions in Gannett
recognized, suppression hearings often are as important as the trial itself. 443
U.S., at 397, n. 1, 99 S.Ct., at 2914, n. 1 (POWELL, J., concurring); id., at 434436, 99 S.Ct., at 2933-2934 (BLACKMUN, J., dissenting in part); see also id.,
at 397, 99 S.Ct., at 2914 (BURGER, C.J., concurring). In Gannett, as in many
cases, the suppression hearing was the only trial, because the defendants
thereafter pleaded guilty pursuant to a plea bargain.

16

In addition, a suppression hearing often resembles a bench trial: witnesses are

sworn and testify, and of course counsel argue their positions. The outcome
frequently depends on a resolution of factual matters. See id., at 434, 99 S.Ct.,
at 2933 (BLACKMUN, J., dissenting in part). The need for an open proceeding
may be particularly strong with respect to suppression hearings. A challenge to
the seizure of evidence frequently attacks the conduct of police and prosecutor.
As the Court of Appeals for the Third Circuit has noted, "[s] trong pressures
are naturally at work on the prosecution's witnesses to justify the propriety of
their conduct in obtaining" the evidence. Rundle, supra, at 605. The public in
general also has a strong interest in exposing substantial allegations of police
misconduct to the salutary effects of public scrutiny.5 In sum, we hold that
under the Sixth Amendment any closure of a suppression hearing over the
objections of the accused must meet the tests set out in Press-Enterprise and its
predecessors.6

B
17

Applying these tests to the cases at bar, we find the closure of the entire
suppression hearing plainly was unjustified. Under Press-Enterprise, 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
proceeding, and it must make findings adequate to support the closure. In this
case, the only evidence about which the prosecutor expressed concern was the

information derived from the wiretaps; he argued that unnecessary

"publication" would render the taps inadmissible under the Georgia wiretap
statute. App. 13a. The Georgia Supreme Court advanced the more general, but
essentially identical, interest in protecting the privacy of persons not before the
court. 251 Ga., at 126-127, 303 S.E.2d, at 441. Under certain circumstances,
these interests may well justify closing portions of a suppression hearing to the
public. See Press-Enterprise, 464 U.S., at 511-512, 104 S.Ct., at 824.
18

Here, however, the State's proffer was not specific as to whose privacy interests
might be infringed, how they would be infringed, what portions of the tapes
might infringe them, 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.7 The court did not consider alternatives
to immediate closure of the entire hearing: directing the government to provide
more detail about its need for closure, in camera if necessary, and closing only
those parts of the hearing that jeopardized the interests advanced.8 As it turned
out, of course, the closure was far more extensive than necessary. The tapes
lasted only 21/2 hours of the 7-day hearing, and few of them mentioned or
involved parties not then before the court.

C
19

The question that remains is what relief should be ordered to remedy this
constitutional violation. Petitioners argue that a new trial on the merits should
be ordered. The Solicitor General, appearing on behalf of the United States as
amicus curiae, suggests that at most only a new suppression hearing be
directed. The parties do not question the consistent view of the lower federal
courts that the defendant should not be required to prove specific prejudice in
order to obtain relief for a violation of the public-trial guarantee. 9 We agree
with that view, but we do not think it requires a new trial in this case. Rather,
the remedy should be appropriate to the violation. If, after a new suppression
hearing, essentially the same evidence is suppressed, a new trial presumably
would be a windfall for the defendant, and not in the public interest. Cf.
Goldberg v. United States, 425 U.S. 94, 111, 96 S.Ct. 1338, 1348, 47 L.Ed.2d
603 (1976); Jackson v. Denno, 378 U.S. 368, 394-396, 84 S.Ct. 1774, 17901791, 12 L.Ed.2d 908 (1964).

20

In these cases, it seems clear that unless the State substantially alters the
evidence it presents to support the searches and wiretaps here, significant
portions of a new suppression hearing must be open to the public. We remand
to the state courts to decide what portions, if any, may be closed. This decision
should be made in light of conditions at the time of the new hearing, and only

interests that still justify closure should be considered. 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.
21

The judgments below are reversed, and the cases are remanded for further
proceedings not inconsistent with this opinion.

22

It is so ordered.

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.

Petitioners advance two Fourth Amendment arguments, both of which may be

disposed of summarily. First, they assert that a forfeiture section
of the Georgia RICO statute that authorizes certain warrantless seizures of all
property used in or derived from a pattern of racketeering activity is facially
invalid under the Fourth Amendment. See Ga.Code Ann. 16-14-7(f) (1982
and Supp.1983). We find that petitioners have not established that they have
standing to challenge the statute in the present proceeding. It appears that all
the evidence that was admitted at trial was seized under the authority of the
search warrants, not pursuant to the statute. The opinion below is not to the
contrary. The fact that the Georgia Supreme Court found standing does not

permit us to avoid the responsibility of ensuring that our order will be other
than advisory.
Petitioners' second Fourth Amendment challenge is that police so "flagrant[ly]
disregard[ed]" the scope of the warrants in conducting the seizures at issue here
that they turned the warrants into impermissible general warrants. Petitioners
rely on lower court cases such as United States v. Heldt, 215 U.S.App.D.C.
206, 227, 668 F.2d 1238, 1259 (1981) (per curiam), cert. denied sub nom.
Hubbard v. United States, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440
(1982), and United States v. Rettig, 589 F.2d 418, 423 (CA9 1978), for the
proposition that in such circumstances the entire fruits of the search, and not
just those items as to which there was no probable cause to support seizure,
must be suppressed. Petitioners do not assert that the officers exceeded the
scope of the warrant in the places searched. Rather, they say only that the
police unlawfully seized and took away items unconnected to the prosecution.
The Georgia Supreme Court found that all items that were unlawfully seized
were suppressed. In these circumstances, there is certainly no requirement that
lawfully seized evidence be suppressed as well. See, e.g., Andresen v.
Maryland, 427 U.S. 463, 482, n. 11, 96 S.Ct. 2737, 2749, n. 11, 49 L.Ed.2d 627
(1976); United States v. Offices Known As 50 State Distributing Co., 708 F.2d
1371, 1376 (CA9 1983), cert. denied, 465 U.S. 1021, 104 S.Ct. 1272, 79
L.Ed.2d 677 (1984); United States v. Tamura, 694 F.2d 591, 597 (CA9 1982);
United States v. Holmes, 452 F.2d 249, 259 (CA7 1971).
4

Accord, Estes v. Texas, 381 U.S. 532, 588, 85 S.Ct. 1628, 1662, 14 L.Ed.2d
543 (1965) (Harlan, J., concurring) ("Essentially, the public-trial guarantee
embodies a view of human nature, true as a general rule, that judges, lawyers,
witnesses, and jurors will perform their respective functions more responsibly
in an open court than in secret proceedings"); In re Oliver, 333 U.S., at 270, 68
S.Ct., at 506 ("The knowledge that every criminal trial is subject to
contemporaneous review in the forum of public opinion is an effective restraint
on possible abuse of judicial power").

To the extent there is an independent public interest in the Sixth Amendment

public-trial guarantee, see Gannett, 443 U.S., at 383, 99 S.Ct., at 2907; cf.
Globe Newspaper, 457 U.S., at 604, 102 S.Ct., at 2618, it applies with full force
to suppression hearings. This case is an example. The defendants alleged that
police conducted general searches and wholesale seizures in over 150 homes,
and eavesdropped on more than 800 hours of telephone conversations by means
of effectively unsupervised wiretaps. Cf. id., at 605, 102 S.Ct., at 2619 (First
Amendment right of access to criminal trials "ensure[s] that [the]
constitutionally protected 'discussion of governmental affairs' is an informed
one").

One of the reasons often advanced for closing a trial avoiding tainting of the
jury by pretrial publicity, e.g., Press-Enterprise, 464 U.S., at 510, 104 S.Ct., at
824is largely absent when a defendant makes an informed decision to object
to the closing of the proceeding. In addition, that rationale is further attenuated
where, as here, the jurors have been empaneled and instructed not to discuss the
case or read or view press accounts of the matter. Tr. 238-239, 240-241, 293294.
Petitioners also make a claim to an open trial under the First Amendment. In
view of our holding, there is no need to discuss that claim.

The court's only relevant finding was as follows: "If you plan to offer evidence,
or if you are going to offer evidence that relates not only to those defendants not
on trial but to other offenders, . . . in my judgment insofar as they are
concerned, it would amount to a publication and it would be tainted because of
the publication." App. 14a.

The post hoc assertion by the Georgia Supreme Court that the trial court
balanced petitioners' right to a public hearing against the privacy rights of
others cannot satisfy the deficiencies in the trial court's record. The assertion
finds little or no support in the record, and is itself too broad to meet the PressEnterprise standard.

See, e.g., Douglas v. Wainwright, 714 F.2d 1532, 1542 (CA11 1983) (citing
cases), cert. pending, Nos. 83-817, 83-995. See also Levine v. United States,
362 U.S. 610, 627, n., 80 S.Ct. 1038, 1048, n., 4 L.Ed.2d 989 (1960)
(BRENNAN, J., dissenting) ("[T]he settled rule of the federal courts [is] that a
showing of prejudice is not necessary for reversal of a conviction not had in
public proceedings"). The general view appears to be that of the Court of
Appeals for the Third Circuit. It noted in an en banc opinion that a requirement
that prejudice be shown "would in most cases deprive [the defendant] of the
[public-trial] guarantee, for it would be difficult to envisage a case in which he
would have evidence available of specific injury." United States ex rel. Bennett
v. Rundle, 419 F.2d 599, 608 (1969). While the benefits of a public trial are
frequently intangible, difficult to prove, or a matter of chance, the Framers
plainly thought them nonetheless real. See also State v. Sheppard, 182 Conn.
412, 418, 438 A.2d 125, 128 (1980) ("Because demonstration of prejudice in
this kind of case is a practical impossibility, prejudice must necessarily be
implied"); People v. Jones, 47 N.Y.2d 409, 416, 418 N.Y.S.2d 359, 364, 391
N.E.2d 1335, 1340 (1979) ("The harmless error rule is no way to gauge the
great, though intangible, societal loss that flows" from closing courthouse
doors).