THE PEOPLE, Plaintiff and Respondent, v. JANET MARIE HOBBS, Defendant and Appellant.
No. S023739
Supreme Court of California
June 6, 1994
7 Cal. 4th 948
Curry, Vasquez & Hansen and David W. Vasquez for Defendant and Appellant.
John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart, Chief Assistant Attorney General, Arnold O. Overoye and Robert R. Anderson, Assistant Attorneys General, Edmund D. McMurray, Joel E. Carey and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LUCAS, C. J.—Following her plea of no contest, defendant was convicted of having under her control, and knowingly renting, leasing, or making available, a room or space for the purpose of manufacturing or storing, for sale or distribution, a controlled substance (methamphetamine). (
In connection with the finding of probable cause to support the issuance of the warrant, the magistrate, at the time the search warrant application was presented to him, personally examined the informant to establish that person‘s reliability. A tape recording of that proceeding, and a transcription of
The trial court thereafter conducted a hearing, a portion of which was held in camera, on defendant‘s related motions to disclose the sealed Exhibit C and other sealed materials, quash the search warrant and suppress any evidence seized thereunder (
The Court of Appeal reversed, concluding that the sealing of the affidavit and utilization of the in camera review and discovery procedure infringed on defendant‘s due process right to reasonable access to information on which she might base a challenge to the validity of the search warrant. The matter was ordered remanded to the trial court to afford defendant the opportunity to withdraw her plea, and the People the opportunity to voluntarily disclose Exhibit C or incur a dismissal of the charge.
We granted the People‘s petition for review to determine whether a major portion or all of a search warrant affidavit may validly be sealed in order to protect the identity of a confidential informant, and, if so, what procedures must be followed in order to preserve the defendant‘s right to challenge the warrant‘s legality.
I.
At the outset we must determine whether defendant‘s plea of no contest precludes appellate review of the denial of her motions to disclose the sealed portion of the search warrant affidavit and discover the identity of the confidential informant. “Issues cognizable on an appeal following a guilty [or no contest] plea are limited to issues based on ‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings’ resulting in the plea.” (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896 [135 Cal.Rptr. 786, 558 P.2d 872]; see
The Attorney General attacks the propriety of the appeal by characterizing defendant‘s challenge to the sealing of the search warrant affidavit as an appeal from the denial of her motion to disclose the identity of the informant. So construed, the challenge would relate to defendant‘s guilt, rather than the legality of the search pursuant to warrant, and would have
In contrast, an exception to the general rule barring appeal is set forth in
The Attorney General raised a similar procedural challenge in People v. Seibel (1990) 219 Cal.App.3d 1279 [269 Cal.Rptr. 313] (Seibel). He argued that the defendant‘s motions to unseal a search warrant affidavit were not motions to suppress evidence under
“It is apparent from the procedural history of the case ... that appellant repeatedly raised the issue of the propriety of the sealing of the affidavit at all stages of the proceeding, including the seeking of a writ in this court. Appellant raised the validity of the search warrant by a
section 1538.5 motion in which he attacked the warrant on a number of bases. It is true that he did not expressly renew his previous motions to unseal the affidavit. However, the issue was implicitly renewed when he argued in support of his suppression motion that the affidavit on its face did not provide sufficient facts to support a finding of probable cause and that appellant had ‘no information’ from which he could conclude that the sealed portion of the affidavit contained more specific, timely, and reliable information. The issue was expressly renewed in appellant‘s moving papers when he complained that he had ‘been repeatedly denied access to the remaining sealed portions of the warrant affidavit ...,’ and when he attacked, as best he could under the circumstances, the veracity of the affidavit by arguing that he hadinformation that he had not sold cocaine within seven days of the date of the affidavit. At no time did the People object to the propriety of appellant‘s raising a discovery issue by way of a section 1538.5 motion. Accordingly, they should not be heard to object on appeal. (People v. Martin (1969) 2 Cal.App.3d 121, 125-126 [82 Cal.Rptr. 414]; 4 Witkin & Epstein, Cal. Criminal Law [(2d ed. 1989)], Exclusion of Illegally Obtained Evidence ... § 2250, p. 2645.)” (Seibel, supra, 219 Cal.App.3d at p. 1285.)
We reach a similar conclusion in the present case. Defendant moved for disclosure of the contents of the sealed attachment Exhibit C.1 She sought access to the material facts on which the prosecution relied to establish probable cause in order to challenge the sufficiency of that finding, and to traverse the warrant by attacking the veracity of those factual allegations. We agree with the conclusion of the Court of Appeal below that, on this record, it is irrelevant that defendant initially requested access to Exhibit C in a document separate from her motions to quash and traverse the search warrant. Consistent with the holding in Seibel, supra, 219 Cal.App.3d at page 1285, the record herein reflects that from the day defendant simultaneously filed her written pleadings seeking access to Exhibit C and to quash and traverse the warrant, through each of the several hearings held to resolve her challenges to the warrant, defendant, the court, and the prosecutor treated her request for disclosure of the contents of Exhibit C as an integral part of her motions to quash and traverse the warrant. At no time did the prosecutor object to the procedural approach taken by defendant.
We therefore conclude that defendant‘s appeal was properly taken, and proceed to the merits of the People‘s claim.
II.
The issue posed in this case reflects the inherent tension between the public need to protect the identities of confidential informants, and a criminal defendant‘s right of reasonable access to information upon which to base a challenge to the legality of a search warrant. Specifically, we must determine whether the trial court properly utilized an in camera review and discovery procedure in upholding the validity of the search warrant in this case, where the major portion of the affidavit in support of the warrant was sealed to protect the confidential informant‘s identity.
The policy reasons underlying the need to protect the identities of confidential informants have long been recognized. Citing Professor Wigmore,
” ‘A genuine privilege, on ... fundamental principle ..., must be recognized for the identity of persons supplying the government with information concerning the commission of crimes. Communications of this kind ought to receive encouragement. They are discouraged if the informer‘s identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary award, he will usually condition his cooperation on an assurance of anonymity—to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship.’ ” (McCray v. Illinois (1967) 386 U.S. 300, 308-309 [18 L.Ed.2d 62, 69, 87 S.Ct. 1056], italics in original; see also 8 Wigmore, Evidence (McNaughton rev. 1961) § 2374.)
The same principle was acknowledged nearly 40 years ago in People v. Gonzales (1955) 136 Cal.App.2d 437 [288 P.2d 588], disapproved on other grounds in People v. McShann (1958) 50 Cal.2d 802, 808 [330 P.2d 33]: “It is clear that the public interest would suffer if the disclosure were compelled of the names of those citizens who inform public officers of violations of law and who assist such officers in the performance of their duty to apprehend law violators. A citizen who knows that the fact would be made public that he had disclosed such information to public officers may be loathe to cooperate in the administration of justice by exercising his right and duty to make such disclosures because he would justifiably believe himself to be in danger of physical violence from those upon whom he had informed, as well as in danger of actions of slander and malicious prosecution.” (People v. Gonzales, supra, 136 Cal.App.2d at p. 441.)
The scope of the common law privilege to refuse disclosure of the identity of a confidential informant was discussed by the United States Supreme Court in Roviaro v. United States (1956) 353 U.S. 53 [1 L.Ed.2d 639, 77 S.Ct. 623]: “The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed ... the privilege is no longer applicable. [][] A further limitation on the applicability
Whether disclosure of an informant‘s identity or the contents of his communication is “relevant and helpful to the defense of an accused” or “essential to a fair determination of a cause” will depend in large part on whether the informant is a potential material witness on the issue of guilt. As we explained in People v. McShann, supra, 50 Cal.2d at page 808: “Disclosure is frequently a problem in such cases as the present one involving violations of the narcotics laws, when the so-called informer is also a material witness on the issue of guilt. A mere informer has a limited role. ‘When such a person is truly an informant he simply points the finger of suspicion toward a person who has violated the law. He puts the wheels in motion which cause the defendant to be suspected and perhaps arrested, but he plays no part in the criminal act with which the defendant is later charged.’ [Citation.] His identity is ordinarily not necessary to the defendant‘s case, and the privilege against disclosure properly applies. When it appears from the evidence, however, that the informer is also a material witness on the issue of guilt, his identity is relevant and may be helpful to the defendant. Nondisclosure would deprive him of a fair trial. Thus, when it appears from the evidence that the informer is a material witness on the issue of guilt and the accused seeks disclosure on cross-examination, the People must either disclose his identity or incur a dismissal. (See Roviaro v. United States, supra, 353 U.S. at 61.)”
In contrast to the situation where the defendant is seeking to discover whether a confidential informant is a material witness on the issue of guilt or innocence, where the defendant merely seeks to discover the informant‘s identity in connection with a challenge to the legality of a search based on information furnished by the informant, a critical distinction is drawn in the case law between searches conducted pursuant to warrant and warrantless searches. It has long been the rule in California that the identity of an informant who has supplied probable cause for the issuance of a search warrant need not be disclosed where such disclosure is sought merely to aid in attacking probable cause. (People v. Borunda (1974) 11 Cal.3d 523, 527 [113 Cal.Rptr. 825, 522 P.2d 1]; People v. Keener (1961) 55 Cal.2d 714, 723 [12 Cal.Rptr. 859, 361 P.2d 587]; Seibel, supra, 219 Cal.App.3d at p. 1288; People v. Greenstreet (1990) 218 Cal.App.3d 1516, 1518 [267 Cal.Rptr.
We explained the rationale behind this rule in People v. Keener, supra, 55 Cal.2d at pages 722-723: “If a search is made pursuant to a warrant valid on its face and the only objection is that it was based on information given to a police officer by an unnamed informant, there is substantial protection against unlawful search and the necessity of applying the exclusionary rule in order to remove the incentive to engage in unlawful searches is not present. The warrant, of course, is issued by a magistrate, not by a police officer, and will be issued only when the magistrate is satisfied by the supporting affidavit that there is probable cause. He may, if he sees fit, require disclosure of the identity of the informant before issuing the warrant or require that the informant be brought to him. The requirement that an affidavit be presented to the magistrate and his control over the issuance of the warrant diminish the danger of illegal action, and it does not appear that there has been frequent abuse of the search warrant procedure. ... It follows from what we have said that where a search is made pursuant to a warrant valid on its face, the prosecution is not required to reveal the identity of the informer in order to establish the legality of the search and the admissibility of the evidence obtained as a result of it.” (Italics added.)
The common law privilege to refuse disclosure of the identity of a confidential informant has been codified in
Briefly,
The scope of the informant‘s privilege embodied in
These codified privileges and decisional rules together comprise an exception to the statutory requirement that the contents of a search warrant, including any supporting affidavits setting forth the facts establishing probable cause for the search, become a public record once the warrant is executed. (
Thus, the courts have sanctioned a procedure whereby those portions of a search warrant affidavit which, if disclosed to the defense, would effectively
Similarly, when the affidavit or confidential attachment is in a form, such as a tape recording of an interview or a transcription of an oral statement (see
The Legislature and the courts have also sanctioned the procedure of sealing portions of a search warrant affidavit that relate facts or information which, if disclosed in the public portion of the affidavit, will reveal or tend to reveal a confidential informant‘s identity. The materials, usually sealed by the magistrate at the time the search warrant is signed and issued, are then made available for in camera review by the trial court in connection with any motion brought to challenge the warrant‘s validity or discover whether the informant is a material witness to defendant‘s guilt or innocence. (See, e.g., Seibel, supra, 219 Cal.App.3d at p. 1289; People v. Flannery, supra, 164 Cal.App.3d at pp. 1116-1118.) The court must first determine whether a valid basis exists to exclude the informational materials from the “public” portion of the search warrant application, i.e., determine whether disclosure of those materials would compromise the confidentiality of the informant‘s identity. Any portions of the sealed materials which, if disclosed, would not reveal or tend to reveal the informant‘s identity must be made public and subject to discovery by the defense. (See, e.g., Swanson v. Superior Court, supra, 211 Cal.App.3d at p. 339.)
As explained above, an in camera review procedure is specifically authorized when the defendant is seeking disclosure of the identity of a confidential informant “on the ground the informant is a material witness on the issue of guilt.” (
These codified rules and procedures are designed to strike a fair balance between the People‘s privilege to refuse disclosure of a confidential informant‘s identity and the defendant‘s limited discovery rights in connection with any challenge to the search warrant‘s validity. Heightened concerns arise, however, when the prosecution seeks to invoke the corollary rule extending the privilege to most or all of the factual showing of probable cause in a search warrant affidavit on the ground that disclosure of the substance of the informant‘s statement will itself reveal or tend to reveal his or her identity. Several courts have observed that ” ‘[a] defendant who cannot view any [major portion] of the affidavit cannot make a judgment as to whether any [legal challenges to the validity of the search warrant] should be made‘.“; hence, the sealing of the majority or entirety of the search warrant affidavit ” ‘leaves the defendant without an adversary before the court who can not only ascertain that the appropriate challenges are considered but also that the defense argument is vigorously and effectively pursued.’ ” (Seibel, supra, 219 Cal.App.3d at p. 1292, quoting Swanson v. Superior Court, supra, 211 Cal.App.3d at p. 339.)
This conceptual dilemma has led to two published and conflicting Court of Appeal decisions: Seibel, supra, 219 Cal.App.3d 1279, and the opinion of the Court of Appeal in the present case. A brief comparison of the analyses of these two decisions will shed light on our ultimate determination to endorse the analysis of Seibel over that invoked by the Court of Appeal below.
The Seibel court acknowledged the “tension” created when the People invoke the informant‘s privilege and the defendant in turn asserts his due process right to reasonable discovery of information upon which he might base a challenge to the search warrant. (219 Cal.App.3d at p. 1282.) The court reviewed the common law rules, as well as the codified privileges and procedures that are designed to seek an accommodation of these competing rights, and then observed that, “[a]s a solution to [the] dilemma [posed where the major portion of a search warrant affidavit is sealed to protect the informant‘s identity] appellant in essence asks, as he did below, for discovery. The right to discovery by a criminal defendant was recently clarified by our Supreme Court in People v. Luttenberger [(1990)] 50 Cal.3d 1 [265 Cal.Rptr. 690, 784 P.2d 633], which thoroughly analyzed that right in a
We agree with the Seibel court that the analysis invoked by this court in People v. Luttenberger (1990) 50 Cal.3d 1 [265 Cal.Rptr. 690, 784 P.2d 633] (Luttenberger) is relevant and applicable to the issue at hand.
In Luttenberger, the affiant of a search warrant affidavit represented that a confidential informant was reliable, but gave no further details about the informant‘s background or reliability. Defendant did not assert that the affidavit was facially insufficient, nor did he seek disclosure of the informant‘s identity. Instead, he sought to mount a subfacial challenge, i.e., attack the underlying veracity of statements made on the face of the search warrant application. (See Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667, 98 S.Ct. 2674] [Franks].) Prior to the preliminary hearing, defendant had sought to invoke the procedures established in People v. Rivas (1985) 170 Cal.App.3d 312 [216 Cal.Rptr. 477] (Rivas), by requesting an in camera review of information (e.g., police records and other documents) relating to the informant‘s background and reliability. Rivas authorizes such discovery provided that the documents are first screened in camera by the lower court to protect the confidentiality of the informant‘s identity. (Id. at p. 322.) The magistrate in Luttenberger denied defendant‘s request for in camera review; the trial court thereafter granted defendant‘s motion to dismiss the information due to the denial of that motion. The Court of Appeal affirmed the trial court‘s order dismissing the information. We reversed.
Our opinion in Luttenberger reaffirmed that a criminal defendant‘s right to discovery is based on the fundamental proposition that the accused is entitled to a fair trial and the opportunity to present an intelligent defense in light of all relevant and reasonably accessible information. (Luttenberger, supra, 50 Cal.3d at p. 17.) We rejected the People‘s suggestion that the Franks requirement, i.e., that a “substantial preliminary showing” first be made in order to entitle the defendant to an evidentiary hearing on the veracity of statements made in the search warrant affidavit, must be imposed on the Rivas discovery process. Observing that Franks did not involve a confidential informant nor address how a defendant would go about gathering information for a “substantial preliminary showing” of material misrepresentation where a confidential informant was involved, we concluded that the high court in Franks could not within reason have intended its standard to apply and effectively bar challenges to search warrant affidavits based on confidential informants’ tips. (Luttenberger, supra, 50 Cal.3d at p. 18.)
On the other hand, we disagreed with that aspect of the holding in Rivas that required a defendant merely to assert his need for discovery in conclusory terms. We determined that to afford a defendant the right to in camera
We further explained in Luttenberger that utilization of the in camera review and discovery procedure approved in Rivas does not conflict with the holding in Franks. Characterizing the state‘s interest in protecting the identity of the confidential informant as “strong and legitimate,” and the defendant‘s right to mount a subfacial challenge to the veracity of statements made in a search warrant affidavit as “limited but viable,” we approved the in camera review and discovery procedure as an effective screening device that “protect[s] the government‘s confidentiality interests while safeguarding the defendant‘s rights and the integrity of the warrant issuing process. (See 1 LaFave [Search and Seizure] (2d ed. 1987) § 3.3(g), pp. 709-711.)” (Luttenberger, supra, 50 Cal.3d at p. 19.)
The Seibel court recognized that Luttenberger did not deal with a “sealed affidavit” per se, but concluded nonetheless that “the facts of [Luttenberger] and the facts of the case at bench both gave rise to the necessity of resolving essentially the same set of conflicting interests.” (Seibel, supra, 219 Cal.App.3d at p. 1296.) The court reasoned that since “an affidavit may be sealed to the extent necessary to protect the public interest in the confidentiality of the informant‘s identity. [Citations.] It follows ... that a sealing of virtually all of an affidavit, as occurred in the case at bench, is permissible if the necessity requirement is met. The question of how much may be sealed simply is one of degree.” (Id. at p. 1297.)
In contrast to Seibel, the Court of Appeal in the instant case found this court‘s reasoning in Luttenberger, supra, 50 Cal.3d 1, inapposite to the issue at hand. The court rejected the proposition that the in camera review and discovery procedure set forth in Luttenberger (see also
We disagree with the conclusions of the Court of Appeal below, and find instead that the rationale of Seibel, in conjunction with the procedures outlined by this court in Luttenberger, suggest the proper resolution of the issue before us. Under the balance struck by the Court of Appeal, and contrary to the weight of the authorities reviewed above, the state‘s “strong and legitimate” interest in protecting the confidentiality of its informants (Luttenberger, supra, 50 Cal.3d at p. 19), and the codified rules and privileges devised to implement that fundamental right, were subordinated to defendant‘s “limited but viable” right to raise a pretrial challenge to the validity of the search warrant.
The recent opinion of the New York Court of Appeals in People v. Castillo (1992) 80 N.Y.2d 578 [592 N.Y.S.2d 945, 607 N.E.2d 1050] (Castillo), certiorari denied Castillo v. New York (1993) 507 U.S. 1033 [123 L.Ed.2d 477, 113 S.Ct. 1854], is particularly instructive on the nature of the balance that must be struck when the People seek to assert the informant‘s privilege and extend its coverage to the contents of a statement or information furnished by the informant.
The defendant in Castillo was convicted of criminal possession of a controlled substance and possession of a weapon. The inculpating evidence was discovered after police executed a warrant, based upon information supplied by a confidential informant, authorizing a search of the defendant‘s apartment. “[The] defendant sought to inspect the warrant and the supporting documents and to have a hearing to challenge the issuing Judge‘s determination that probable cause for the search existed. The [trial] court denied discovery and, following an in camera suppression hearing, denied the motion to suppress. Defendant was not afforded the opportunity to see the supporting documents or to participate in the hearing because the court found that disclosure of the informant‘s identity and/or statements could
Rejecting defendant‘s claim that “a suppression procedure conducted without his participation violate[d] his constitutional right to due process of law and the effective assistance of counsel,” New York State‘s high court explained that whether the defendant had an absolute right to participate in the pretrial suppression hearing “depends upon a sensitive balancing of a defendant‘s right to participate in the defense and society‘s need to encourage citizens to participate in law enforcement by granting them anonymity when necessary for their protection. [Citations.]” (Castillo, supra, 607 N.E.2d at pp. 1051-1052.) The Castillo court reasoned: “Analysis starts by focusing on the nature of the proceeding for there is a fundamental difference between a trial to adjudicate guilt or innocence and a pretrial hearing to suppress evidence. The due process requirements for a hearing may be less elaborate and demanding than those at the trial proper. [Citations.] This is so because, as the [United States] Supreme Court has observed, at a pretrial hearing, “‘we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society‘s need for the informer privilege. Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode of seizure, but rather as a sanction to compel [law] enforcement officers to respect the constitutional security of all of us under the Fourth Amendment . . . . If the motion to suppress is denied, defendant will still be judged upon the untarnished truth.“’ (McCray v. Illinois, 386 U.S. 300, 307 [18 L.Ed.2d 62, 68, 87 S.Ct. 1056] [quoting from State v. Burnett, 42 N.J. 377, 201 A.2d 39]; see generally 1 LaFave, Search and Seizure § 3.3[g] [2d ed.].)” (Castillo, supra, 607 N.E.2d at p. 1052.)
The Castillo court observed that “[a] defendant‘s interest in availing himself of the exclusionary rule may, in exceptional circumstances, be subordinated to safety precautions necessary to encourage citizens to participate in law enforcement.” (607 N.E.2d at p. 1052.) The court explained that “[i]n order to protect the confidentiality of the informant . . . [it had] sanctioned a procedure whereby a significant aspect of the inquiry on the motion to suppress is conducted by the court on defendant‘s behalf, without the defendant‘s direct participation,” and that, where appropriate, such a procedure could be utilized even where “none of the purported factual predicates for probable cause was revealed to defendant.” (Id. at p. 1053, italics added.)
In approving the in camera procedure utilized by the trial court to hear and decide the suppression motion, the Castillo court took particular note of the
Our review of the decisions of the courts of other jurisdictions that have addressed the issue, as well as pertinent decisions of the United States Courts of Appeals, reflect that they too are in accord with the holding in Seibel, supra, 219 Cal.App.3d 1279, and that of New York‘s high court in Castillo, supra, 607 N.E.2d 1050, insofar as they all uniformly find that utilization of an in camera review procedure adequately safeguards both parties’ rights.
Thus, in State v. Casal (1985) 103 Wash.2d 812 [699 P.2d 1234], the Washington Supreme Court considered a defendant‘s challenge to a search warrant affidavit based on confidential communications from an informant that comprised the sole basis for probable cause to issue the warrant. (Id. at p. 1235.) Recognizing that under those circumstances defendant was unable to make the “substantial preliminary showing” necessary to obtain a hearing under Franks, supra, 438 U.S. 154, the Casal court held that a hearing was justified on a somewhat lesser showing of inaccuracy or inconsistency, and that the hearing should be held in camera to protect the identity of the informant. Casal observes that “[n]umerous courts, recognizing the dilemma created for the defendant who is faced with a secret informer, have devised a simple solution. That solution is the in camera, ex parte hearing.” (State v. Casal, supra, 699 P.2d at p. 1238.)
A similar conclusion was reached by the United States Court of Appeals, Ninth Circuit, in United States v. Moore (9th Cir. 1975) 522 F.2d 1068. The defendant in Moore challenged the trial court‘s denial of his motion for
Lastly, the Court of Appeal below concluded that enforcement of a defendant‘s Fourth Amendment rights, under circumstances such as are presented here, cannot be entrusted to trial judges “who may or may not have the legal sophistication to recognize the nuances of criminal procedure absent the assistance and vigorous advocacy of defendant and her attorney.” We disagree. As the Seibel court observed, “Insofar as use of sealed affidavits is unavoidable, it is not unusual or inappropriate for the ‘burden’ of protecting citizens’ rights to fall upon our judiciary, and trial courts, as always, retain broad discretion in weighing the government‘s interests against defendant‘s rights.” (Seibel, supra, 219 Cal.App.3d at p. 1298.) And, as explained in People v. Levine (1984) 152 Cal.App.3d 1058, 1070 [199 Cal.Rptr. 756]: “While some defense critics have been distrustful of any unilateral determination of materiality reached without participation by defense counsel, and have been critical of placing an additional burden of judicial investigation upon the trial judge, the United States Supreme Court in Taglianetti v. United States (1969) 394 U.S. 316, 317-318 [22 L.Ed.2d 302, 305, 89 S.Ct. 1099] held: ‘[W]e cannot hold “that the task is too complex, and the margin for error too great, to rely wholly on the in camera judgment of the trial court.” ‘”
The United States Court of Appeals, Ninth Circuit, reached such a determination in United States v. Anderson (9th Cir. 1974) 509 F.2d 724. The Anderson court held that the trial court must protect the competing interests of the parties when disclosure of information comprising the basis for probable cause will necessarily divulge the identity of a confidential informant: “Thus, rather than establishing a fixed rule that either requires or precludes disclosure of the informant‘s identity when probable cause is in issue, we hold that the responsibility for striking the proper balance in each case rests with the trial judge. . . . If the trial judge is satisfied that an in camera hearing in which neither the defendant nor his attorney participates is adequate to explore the foundations of the informant‘s information, then no disclosure is necessary. The trial court‘s determination will be reversed only if it constitutes an abuse of discretion or constitutional error.” (Id. pp. 729-730.)
We therefore conclude that, taken together, the informant‘s privilege (
Where, as here, due to the sealing of any portion or all of the search warrant affidavit, the defendant cannot reasonably be expected to make the preliminary showing required under Luttenberger, supra,
On a properly noticed motion by the defense seeking to quash or traverse the search warrant, the lower court should conduct an in camera hearing pursuant to the guidelines set forth in
Because, in sealed affidavit cases such as the one before us, the defendant may be completely ignorant of all critical portions of the affidavit, the defense will generally be unable to specify what materials the court should review in camera. The court, therefore, must take it upon itself both to examine the affidavit for possible inconsistencies or insufficiencies regarding the showing of probable cause, and inform the prosecution of the materials or witnesses it requires. The materials will invariably include such items as relevant police reports and other information regarding the informant and the informant‘s reliability.
Furthermore, because the defendant‘s access to the essence of the affidavit is curtailed or possibly eliminated, the lower court may, in its discretion, find it necessary and appropriate to call and question the affiant, the informant, or any other witness whose testimony it deems necessary to rule upon the issues. (See Seibel, supra, 219 Cal.App.3d at pp. 1297-1298; Luttenberger, supra, 50 Cal.3d at p. 20; Swanson v. Superior Court, supra, 211 Cal.App.3d at p. 336; People v. Flannery, supra, 164 Cal.App.3d at p. 1115.) If the informant is called as a witness, precautions may be taken to protect his or her identity, including the holding of the in camera hearing at a place other than the courthouse if deemed necessary to guarantee the informant‘s anonymity.8
The precise standard of review to be applied at the in camera proceeding will depend in part on the nature of the motion or motions noticed by the defendant. As already noted, in each instance the court must initially determine whether the affidavit is properly sealed, i.e., whether valid grounds exist for maintaining the informant‘s confidentiality, and whether the extent of the sealing is justified as necessary to avoid revealing his or her identity.
If the trial court determines that the materials and testimony before it do not support defendant‘s charges of material misrepresentation, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse. (Cf.
If, on the other hand, the court determines there is a reasonable probability that defendant would prevail on the motion to traverse—i.e., a reasonable probability, based on the court‘s in camera examination of all the relevant materials, that the affidavit includes a false statement or statements made knowingly and intentionally, or with reckless disregard for the truth, which is material to the finding of probable cause (Franks, supra, 438 U.S. at pp. 155-156 [57 L.Ed.2d at p. 672])—the district attorney must be afforded the option of consenting to disclosure of the sealed materials, in which case the motion to traverse can then proceed to decision with the benefit of this additional evidence, and a further evidentiary hearing if necessary (Seibel, supra, 219 Cal.App.3d at p. 1300; People v. Brown (1989) 207 Cal.App.3d 1541, 1548 [256 Cal.Rptr. 11]), or, alternatively, suffer the entry of an adverse order on the motion to traverse. (
Similarly, if the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant (
If the court determines, based on its review of all the relevant materials, that the affidavit and related materials furnished probable cause for issuance of the warrant under Illinois v. Gates, supra, 462 U.S. 213, the court should simply report this conclusion to the defendant and enter an order denying the motion to quash. (Cf. Luttenberger, supra, 50 Cal.3d at p. 24; Seibel, supra, 219 Cal.App.3d at p. 1299.) If, on the other hand, the court determines, based on its review of all relevant materials and any testimony taken at the in camera hearing, that there is a reasonable probability the defendant would prevail on his motion to quash the warrant—i.e., a reasonable probability that the search warrant affidavit, including the sealed portions thereof, fails to establish sufficient probable cause for issuance of the warrant—then the district attorney must be afforded the opportunity to consent to disclose the sealed materials to the defense, after which the motion to quash can proceed to decision, or, alternatively, suffer the entry of an order adverse to the People on the motion to quash the warrant. (
In all instances, a sealed transcript of the in camera proceedings, and any other sealed or excised materials, should be retained in the record along with the public portions of the search warrant application for possible appellate review. (Luttenberger, supra, 50 Cal.3d at p. 24; Seibel, supra, 219 Cal.App.3d at pp. 1299-1300.)
III.
Applying the foregoing principles to the instant case, it will first be recalled that defendant filed a separate motion to discover the
The record reflects that the only direct reference to defendant or her residence in the unsealed public portion of the affidavit was the listing of her residential address as a location where stolen property was believed to be secreted. The affidavit then refers to the attached “Exhibit C,” which contains the officer-affiant‘s recital of the information furnished by the confidential informant. After the affiant and an assisting deputy district attorney tendered the search warrant application to the magistrate and asserted the informant‘s privilege, the magistrate and deputy district attorney examined the informant in the presence of the officer-affiant, and found good cause to issue the warrant and seal the entirety of Exhibit C (as well as a tape recording and transcript of that proceeding).
In entertaining defendant‘s motions to quash and traverse the warrant and discover the informant‘s identity for the purpose of determining whether he or she was a material witness to defendant‘s guilt or innocence, the trial court conducted its own in camera review of the search warrant application materials. Although it did not require the testimony of the confidential informant anew, the court did review the transcript of the magistrate‘s and deputy district attorney‘s examination of the informant at the time the search warrant was issued. The court found, as did the magistrate, that disclosure of any portion of the factual allegations set forth in the confidential attachment Exhibit C would effectively reveal the informant‘s identity, and that the materials were therefore properly sealed. The Court of Appeal below agreed with this finding, and our own review of the record affords us no basis for questioning this conclusion.
We are satisfied that the trial court acted within its sound discretion in conducting its own in camera review of the sealed materials, affirming the magistrate‘s determination that the sealing of the entirety of Exhibit C was necessary to implement the People‘s assertion of the informant‘s privilege, and in thereafter denying defendant‘s motions to traverse and quash the search warrant. The sealed portions of the record do reflect that the confidential informant had a prior juvenile and adult arrest record, and was implicated in the criminal activity leading to the issuance of the search
A presumption of validity attached to the search warrant, a presumption strengthened by the magistrate‘s efforts in personally questioning and observing the informant in order to determine the veracity of the informant‘s statements and the sufficiency of the showing of probable cause based thereon. It was not necessary for the trial court to develop a further factual record of the basis for the search. The court was left with “the relatively uncomplicated task” of deciding whether, based on the search warrant application and supporting affidavit and materials, together with the record developed by the magistrate, the affidavit failed to set forth sufficiently reliable and competent evidence to support the magistrate‘s finding of probable cause to issue the warrant. (See, e.g., Castillo, supra, 607 N.E.2d at p. 1054; Skelton v. Superior Court, supra, 1 Cal.3d at p. 150.) We conclude, based on our review of the record and sealed materials, that it was not reasonably probable defendant could prevail on her motions to traverse or quash the search warrant. The motions were therefore properly denied.
IV.
The judgment of the Court of Appeal is reversed.
Kennard, J., Arabian, J., Baxter, J., George, J., and Cottle, J.,* concurred.
MOSK, J.—I dissent.
A search warrant containing no information other than the address of a home to be searched. Not a word as to what the government seeks to discover and seize.
Both the suspect and counsel barred from a closed proceeding before a magistrate. No record of the proceeding given to the suspect or counsel.
Based entirely on the foregoing, a court order approving an unrestricted search of the suspect‘s home.
Did this scenario occur in a communist dictatorship? Under a military junta? Or perhaps in a Kafka novel? No, this is grim reality in California in the final decade of the 20th century.
In this conflict between the right of privacy in a person‘s home guaranteed by the Constitution of California and the United States Constitution on the one hand, and on the other the desire of law enforcement personnel to protect an informer‘s identity and to prevent cross-examination and impeachment, the majority of this court opt for the latter at the expense of the former. I would respect the constitutional guaranties: I would affirm the judgment of the Court of Appeal, and hold that the informer‘s privilege codified in
In summarizing the facts of this case the majority never squarely state that the only references to defendant in the public portion of the warrant are (1) the description, “44 Triplett St. Marysville Ca., a woodframed single family structure having the numbers 44 attached to the front exterior wall to the right of the front door,” listed under the heading “PREMISSES [sic] TO BE SEARCHED CONTINUED,” and (2) a notation that Pacific Gas & Electric Company “was contacted and the following information was obtained on the addresses given: [¶] . . . 44 Triplett Way, Marysville, service was listed under Janett [sic] M. Hobbs.” I cannot agree the prosecution may validly assert the informer‘s privilege when the public portion of the warrant contains only this meager information.
To borrow the analogy of defendant‘s counsel, many of our cases have established that the prosecution may use two points in the public portion of the affidavit and two points in the sealed portion, and assert that two plus two equals four—probable cause. (See, e.g., People v. Greenstreet (1990) 218 Cal.App.3d 1516, 1518-1520 [67 Cal.Rptr. 377] [Greenstreet]; Swanson v. Superior Court (1989) 211 Cal.App.3d 332, 338 [259 Cal.Rptr. 260] [Swanson].) The question presented here is whether the prosecution may use
California has codified the informer‘s privilege.
The prosecution may, however, refuse to reveal an informer‘s identity to a defendant who seeks it to establish the illegality of a search or the inadmissibility of evidence from a search—as opposed to a defendant who seeks it to establish his innocence—without suffering that consequence.
With the exception, however, of this case and Seibel, supra, 219 Cal.App.3d 1279, none of the California cases cited by the parties deals with the question whether the informer‘s privilege may apply to shield all the material information that made up probable cause. The warrants discussed in those opinions give the defendant at least some information on which to base a challenge. (See, e.g., Greenstreet, supra, 218 Cal.App.3d at p. 1518 [the trial court excised the portions of the affidavit that would identify the confidential informer and furnished the balance to the defendant]; Swanson, supra, 211 Cal.App.3d at p. 339 [the court held that an affidavit may be sealed only to the extent necessary to protect the confidentiality of the informer‘s identity]; People v. Flannery (1985) 164 Cal.App.3d 1112, 1114 [210 Cal.Rptr. 899] [Flannery] [the magistrate sealed only the portion of the affidavit concerning the reliability of the informer]; see also State v. Casal (1985) 103 Wash.2d 812 [699 P.2d 1234, 1235-1236] [Casal].) Further, federal cases do not extend the informer‘s privilege to shield all the material facts making up probable cause in a warrant. (See, e.g., U.S. v. Cummins (6th Cir. 1990) 912 F.2d 98, 99; United States v. Moore (9th Cir. 1975) 522 F.2d 1068, 1072 [Moore]; United States v. Rivera (N.D.Ind. 1990) 738 F.Supp. 1208, 1211-1212; United States v. Barker (D.Colo. 1985) 623 F.Supp. 823, 836.) Thus, with two exceptions, none of the cases extending the informer‘s privilege to cover an informer‘s communication is applicable to the question before us.4
A settled canon of statutory interpretation aids in resolving the question whether the privilege embodied in
If the suppression hearing is such a “critical stage,” a state cannot take action that renders it ineffective. (See, e.g., Geders v. United States (1976) 425 U.S. 80, 91 [47 L.Ed.2d 592, 600-601, 96 S.Ct. 1330] [holding that an order restraining petitioner from consulting with his attorney during an overnight recess impinged on the Sixth Amendment right to assistance of counsel].) Asserting the informer‘s privilege so that defendant‘s counsel has no access to any of the material facts that went into the determination of probable cause appears to be such an action, and hence would be prohibited. To avoid a potentially unconstitutional interpretation of
In the hearing on the motion to quash and traverse a search warrant, the trial court confronts only the question whether there was probable cause for the issuance of the warrant. Here, the information given by the informer was highly relevant to any defense because it was the only basis for the finding of probable cause; thus, defendant‘s interest in discovery of the information was very high. Conversely, the prosecution‘s interest in the confidentiality of this particular informer was fairly low: there was no evidence in the record that this informer had been of past value or would be of continuing value to the police. Further, this case did not involve organized crime or large quantities of valuable drugs, and thus did not involve a great threat of physical harm to the informer. Given the significance of the information sought and the comparatively weak reasons for maintaining the privilege, simple fairness dictates the privilege should give way here.
A decision along the lines suggested would not have significant practical effect on the ability of police to catch criminals. I do not question generally the propriety of sealing information in affidavits to protect helpful informers. I would merely hold the informer‘s privilege does not allow the prosecution to conceal from the defendant all the material facts establishing probable cause. It does not appear to be a common occurrence both that information from a confidential informer is the sole basis for probable cause and that none of the material facts can be revealed because of the threat to the informer. I am aware of only two other reported cases involving this situation. (Seibel, supra, 219 Cal.App.3d 1279; Castillo, supra, 607 N.E.2d 1050.) Moreover, the prosecution could avoid the impact of the requirements of the law merely by requiring the police to perform additional investigative
Finally, if we were presented with an unusual situation in which the prosecution could demonstrate there were in fact no other means to corroborate the informer‘s information, and that release of any information would endanger the informer, it might be appropriate to consider use of the procedure advocated by the majority.5 That situation, however, is not presented here. There is no evidence to suggest that additional investigation could not have turned up corroborating information, nor does it seem likely that such investigation would have failed. To the extent it is argued that the crime investigated—receipt of stolen property—was too trifling to warrant additional police investigation, this consideration also lessens the public interest in the confidentiality of the informer. (See Roviaro, supra, 353 U.S. at p. 62 [1 L.Ed.2d at p. 646].)
The majority sets out the essence of its reasoning in support of its decision in one paragraph, quoting from Seibel, supra, 219 Cal.App.3d at page 1297. (Maj. opn., ante, p. 966.) Seibel resolved a similar situation on the basis of the “rule” that an affidavit may be sealed to the extent necessary to protect the confidentiality of the informer‘s identity. (Seibel, supra, 219 Cal.App.3d at p. 1297, citing Swanson, supra, 211 Cal.App.3d at p. 339, and Flannery, supra, 164 Cal.App.3d at pp. 1115-1121.) It reasoned that “[i]t follows from th[is] . . . rule that a sealing of virtually all of an affidavit . . . is permissible if the necessity requirement is met.” (Seibel, supra, 219 Cal.App.3d at p. 1297.) The public portion of the warrant in Seibel, however, included the following paragraph: “Within the last seven days, . . . a [confidential informer] . . . told me of a man named William Seibel who sold cocaine. [Confidential informer] purchased an amount of cocaine from William Seibel . . . .” (Id. pp. 1284-1285, omissions in original.) Without passing on the sufficiency of the information given there, I consider Seibel distinguishable insofar as the public portion of the warrant gave the defendant at
In addition, the cases cited by Seibel, supra, 19 Cal.App.3d at page 1297, in support of the proposition that a warrant affidavit may be sealed to the extent necessary to protect the confidentiality of the informer‘s identity do not support the proposition that a warrant affidavit may be sealed in its entirety. Swanson, supra, 211 Cal.App.3d at pages 335-338, dealt with the question of the extent to which the informer‘s privilege may be used to seal information in an oral affidavit. It observed that the “well-established procedure” used with written affidavits suggested the information in an oral affidavit that reveals a confidential informer‘s identity may likewise be concealed from the defendant. (Id. p. 338.) It explicitly warned, however, that “[n]othing in the procedure . . . suggests that the . . . affidavit may be sealed in its entirety.” (Ibid.) It explained: “The problem with sealing the entire affidavit is one of due process. . . . Sealing the entire affidavit prevents [the defendant] from exercising [his Fourth and Sixth Amendment] rights.” (Id. p. 340.)
Flannery, supra, 164 Cal.App.3d 1112, likewise does not support the proposition that a search warrant affidavit may be sealed in its entirety. It is distinguishable insofar as it involved a warrant in which only “data regarding the reliability of the confidential informant” was sealed under the informer‘s privilege; it did not involve a warrant affidavit sealed in its entirety. (Id. p. 1114.) Thus, it too did not address the statutory interpretation and constitutional concerns relevant here. As Swanson observed, ”Flannery cannot be read to support the proposition that an entire affidavit, including all the factual material on which probable cause is grounded, may be sealed to safeguard the identity of a confidential informant.” (211 Cal.App.3d at p. 339.) Thus, the two cases on which Seibel relied do not support the proposition for which it cited them, i.e., that a warrant affidavit may be sealed in its entirety. In essence, the majority here fail to recognize that as the informer‘s privilege is asserted to conceal increasingly greater portions of the material information used to establish probable cause, considerations other than the informer‘s privilege—including constitutional concerns—become increasingly important.
The majority also err in holding that the in camera procedures set forth in People v. Luttenberger (1990) 50 Cal.3d 1 [265 Cal.Rptr. 690, 784 P.2d 633] (Luttenberger) sufficiently protect defendant‘s interests in the situation before us. In Luttenberger (id. p. 8), the defendant requested information about a confidential informant to aid in satisfying the threshold showing required by Franks v. Delaware (1978) 438 U.S. 154, 171 [57 L.Ed.2d 667, 681-682, 98 S.Ct. 2674] (Franks) for a subfacial challenge.6 We held that if a defendant makes a sufficient preliminary showing, the trial court should conduct an in camera hearing in which it examines “records specified by the defendant,” and ascertain whether they support “the defendant‘s allegations of material misrepresentations or omissions.” (50 Cal.3d at p. 24.) Thus we clearly contemplated that the defendant would have access to at least enough information to specify what records should be discovered and to formulate allegations of misrepresentation or omissions.
Moreover, the task of determining whether information in specified records supports explicit allegations differs from the procedure contemplated by the majority. The Luttenberger procedure assigns the court a role akin to a trier of fact: it must determine whether evidence supports allegations. This is the role trial judges assume in every bench trial. In contrast, the majority contemplates the court‘s formulating allegations and promulgating discovery requests—a role judges do not commonly assume. Although the high court was speaking of the magistrate who issues the original warrant, its statement in Franks, supra, 438 U.S. at page 169 [57 L.Ed.2d at page 680], applies equally to the judge reviewing the probable cause determination: he “has no acquaintance with the information that may contradict the good faith and reasonable basis of the affiant‘s allegations.”
For example, in People v. Garcia (1982) 109 Ill.App.3d 142 [64 Ill.Dec. 717, 440 N.E.2d 269, 271], the defendant challenged the warrant affidavit, which stated that a confidential informer had been present in the defendant‘s home when the defendant sold cocaine to an anonymous friend. It also stated that an independent investigation revealed the informer had accurately described the premises, that a 1977 white Cadillac bearing Florida license plate number GBH-166 was parked in front, and that a computer check confirmed that the defendant owned the vehicle. The defendant denied each allegation, and further stated that the Cadillac could not have been parked in front of the apartment on the day and at the time stated in the affidavit because he was driving it from Miami to Chicago at that time.
Finally, neither the Washington state case nor the Ninth Circuit case on which the majority rely lends support to their novel extension of the in camera procedure. Both cases involved the review of warrants that concealed only a portion of the material information that established probable cause, and thus they dealt only with the type of in camera hearing we originally approved in Luttenberger, supra, 50 Cal.3d 1. (See Moore, supra, 522 F.2d at p. 1072; Casal, supra, 699 P.2d at pp. 1235-1236.) Here, in contrast, the warrant contained only defendant‘s home address. Hence Moore and Casal do not speak to whether the novel use of the in camera hearing contemplated by the majority sufficiently protects defendant‘s interest.
A further problem with the majority‘s approach is that all defendants in this situation will automatically be entitled to a hearing. The majority state that “where, as here, all or a major portion of the search warrant affidavit has been sealed in order to preserve the confidentiality of the informant‘s identity . . . the court should treat the matter as if the defendant has made the requisite preliminary showing required under this court‘s holding in Luttenberger.” (Maj. opn., ante, p. 972, fn. 6, italics in original.) The majority thus resolve the problem presented by a defendant who may be completely ignorant of all or a major portion of the affidavit by eliminating the threshold showing requirement.
I emphasize the narrow scope of my dissent: I would hold only that the prosecution may not assert the privilege to refuse to disclose a confidential informer‘s identity to shield all the material facts on which probable cause for a search is based. I observe, however, that this case does not present the problem of what portion of the material facts must be revealed for a valid assertion of the privilege, and I express no opinion as to that question.
For the reasons stated I would affirm the judgment of the Court of Appeal.
Notes
Several Courts of Appeal have recognized that “[w]hile this subdivision provides that the reliability of the confidential informant must be established upon evidence presented in open court ... [it] applies only to search or arrest made upon probable cause without a warrant.” (People v. Flannery, supra, 164 Cal.App.3d at p. 1119, italics added, fn. omitted; see also Cooper v. Superior Court, supra, 118 Cal.App.3d at pp. 508-509 [Legislature established different procedures under subdivision (b) for testing informant‘s reliability as established by a search warrant affidavit, and under subdivision (c) for challenging probable cause to make a warrantless arrest or search].)
The Law Revision Commission‘s comment confirms this interpretation. It states that this subdivision codifies the rule set out in People v. Keener (1961) 55 Cal.2d 714, 723 [12 Cal.Rptr. 859, 361 P.2d 587] (Keener), disapproved on another point in People v. Butler (1966) 64 Cal.2d 842, 845 [52 Cal.Rptr. 4, 415 P.2d 819]. (7 Cal. Law Revision Com. Rep., supra, p. 205.) In Keener, we approved a warrant and affidavit the public portion of which recited material facts that supported the probable cause finding; the affiant merely declined to reveal the informer‘s name. (55 Cal.2d at pp. 717-718, 721.)Second, the defendant may make a subfacial challenge, and allege that the affiant intentionally or recklessly lied in the warrant or affidavit. (See Franks, supra, 438 U.S. at p. 171 [57 L.Ed.2d at pp. 681-682].) The defendant may obtain a hearing on the veracity of the statements made in the affidavit if he successfully makes “a substantial preliminary showing” that the affiant knowingly, intentionally or with reckless disregard for the truth made a false statement, and if the allegedly false statements are necessary to a finding of probable cause. (Id. pp. 155-156 [57 L.Ed.2d at p. 672].)
If the trial court, in entertaining a defense motion challenging the warrant, finds that any portion of the affidavit sealed by the magistrate can be further redacted, and the remaining excerpted portion made public without thereby divulging the informant‘s identity, such additional limited disclosure should be ordered. And, as previously noted (ante, at p. 963), where the affidavit or confidential attachment is in a form, such as a tape recording or transcript, that does not lend itself to partial sealing, the court may order the prosecutor to prepare a written affidavit for disclosure to the defense narrating those facts upon which probable cause is based which do not reveal the identity of the informant. (See Swanson v. Superior Court, supra, 211 Cal.App.3d at p. 339.)