Elec. Frontier Found., Inc. v. Superior Court of San Bernardino Cnty.

• Docket Number: E076778
• Decision Date: 15 September 2022
• Citation: 83 Cal.App.5th 407,299 Cal.Rptr.3d 480
• Parties: ELECTRONIC FRONTIER FOUNDATION, INC., Plaintiff and Appellant, v. The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Defendant and Respondent; San Bernardino County District Attorney's Office et al., Real Parties in Interest and Respondents.
• Court: California Court of Appeals Court of Appeals

83 Cal.App.5th 407

299 Cal.Rptr.3d 480

ELECTRONIC FRONTIER FOUNDATION, INC., Plaintiff and Appellant,

v. The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Defendant and Respondent;San Bernardino County District Attorney's Office et al., Real Parties in Interest and Respondents.

E076778

Court of Appeal, Fourth District, Division 2, California.

Filed September 15, 2022

Electronic Frontier Foundation, Inc., and Aaron Mackey; Law Office of Michael T. Risher and Michael T. Risher, for Plaintiff and Appellant.

Neon Law Foundation and Nicholas Shook; First Amendment Coalition, Glen A. Smith, David E. Snyder and Monica N. Price as Amici Curiae on behalf of Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Jason Anderson, District Attorney, and Mark A. Vos, Deputy District Attorney, for Real Party in Interest and Respondent, District Attorney.

Michelle D. Blakemore, County Counsel, and Miles Kowalski, Deputy County Counsel, for Real Party in Interest and Respondent, the Sheriff.

OPINION

CODRINGTON, J.

I.INTRODUCTION

Between 2018 and 2020, Electric Frontier Foundation, Inc. (EFF) moved to unseal affidavits filed in support of executed search warrants requested by the San Bernardino County Sheriff's Department (the Sheriff) and issued under seal by the San Bernardino Superior Court between March 2017 and March 2018. The trial court denied EFF's motion and ordered the affidavits to remain sealed. EFF appeals, and we affirm.

II.FACTUAL AND PROCEDURAL BACKGROUND

EFF is a "non-profit civil liberties organization working to protect and promote fundamental liberties in the digital world." According to EFF, cell-site simulators always collect the digital data of innocent people. "A cell-site simulator works as its name suggests—it pretends to be a cell tower on the network of the target phone's service provider. It takes advantage of the fact that a cell phone—when turned on—constantly seeks out nearby cell towers, even if the user is not making a call. Furnished with identifying information concerning the target phone, the cell-site simulator searches for that phone. When the cell-site simulator is close enough, the target phone will connect to it as though it were a cell tower." (A.L.R. Criminal Law, Art. XVII, § 392.38(15).

EFF claims law enforcement authorities in San Bernardino County lead the state in the use of cell-site simulators. According to EFF, the Sheriff regularly seeks warrants to use cell-site simulators while moving to keep the warrants sealed indefinitely, and the San Bernardino County Superior Court (the Superior Court) largely grants the request when issuing the warrants. EFF has sought information about numerous search warrants issued by the Superior Court, but this case is about EFF's request for eight search warrants.

Because of its concerns about the use of cell-site simulators, EFF petitioned to unseal eight "search warrant packets" that contained warrants issued by the Superior Court between March 2017 and March 2018 that allowed the Sheriff to use cell-site simulators. (See Cal. Rules, rule 2.551(h)(2).¹ ) EFF sought the search warrant materials "to learn more about (1) the nature of the offenses under investigation, (2) the expertise and qualities of the affiants, (3) why the affiant believes the searches will assist the investigation, (4) the nature of the information to be provided under the warrant, (5) what providers must do to comply with the warrant, and (6) reasons for seeking sealing and/or nondisclosure."

The Sheriff and the San Bernardino County District Attorney (collectively, the County) did not object to the unsealing of one warrant packet (SBSW 18-0850), but opposed the unsealing of portions of the seven other warrant packets.

Specifically, the County argued the returns to the executed search warrants and the so-called " Hobbs affidavits"² in support of the warrants should remain sealed indefinitely, because they contain sensitive information about confidential informants ( Evid. Code, § 1041 ) and "official information," meaning information "acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made." ( Evid. Code, § 1040, subd. (a).) In total, the County argued about 80 pages of information from about 120 pages of the search warrant packets should remain sealed. Under the parties' stipulation, the County provided EFF with portions of the search warrant packets that the County did not oppose unsealing. The County then moved for judgment on EFF's petition and requested that the warrant packets remain sealed except for the select portions that the County had provided to EFF.

The trial court held a hearing on the County's motion in January 2021. At the time of the hearing, the proceedings related to the eight search warrants were at different stages. All of the warrants had been executed and their related investigations had all been completed. Some of the warrants had contributed to three indictments and two convictions, while another defendant was still awaiting trial at the time of the hearing.

After a hearing on the parties' requests, the trial court denied EFF's petition and ordered the affidavits to remain sealed indefinitely.³ The trial court found that EFF was not entitled to the release of the affidavits and, even if it were, the County had a compelling interest in keeping them sealed to protect "confidential informant identity" and investigatory "sources and methods." The court further found that nothing in the Hobbs affidavits could be even partially released. EFF timely appealed.

III.DISCUSSION

EFF argues the trial court should have unsealed the search warrant affidavits under Penal Code section 1534, subdivision (a) ( section 1534(a) ), Rules 2.550 and 2.551, the First Amendment, the California Constitution, and common law. We disagree.

1. EFF's Standing

The County suggests that EFF lost standing to move to unseal the affidavits once the trial court decided that they should remain sealed. We disagree. " ‘A litigant's standing to sue is a threshold issue to be resolved before the matter can be reached on the merits. [Citation.]’ " ( Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1345, 90 Cal.Rptr.3d 589, italics added.) A party's standing is thus a jurisdictional issue "unrelated to the merits" of the action. ( Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1592, 24 Cal.Rptr.3d 50.) EFF, like every other member of the public, " ‘has a legitimate interest and right of general access to court records’ " and thus has standing to sue to unseal the search warrants. ( Sander v. State Bar of California (2013) 58 Cal.4th 300, 318, 165 Cal.Rptr.3d 250, 314 P.3d 488 ; Rule 2.551(h)(2) ["A party or member of the public may move, apply, or petition ... to unseal a record."].)

2. Section 1534(a)

Section 1534(a) provides that a warrant and its related documents need not be made public for 10 days after its issuance. "Thereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record." ( § 1534(a).)

EFF argues that the search warrant packets had to be unsealed under section 1534(a) because the warrants had been executed long before EFF moved to unseal them. But, as the County correctly observes, the confidential informant privilege in Evidence Code section 1041 creates "an exception to [ section 1534(a) ]." ( Hobbs , supra , 7 Cal.4th at p. 962, 30 Cal.Rptr.2d 651, 873 P.2d 1246.) Under this exception, a search warrant affidavit that contains information about a confidential informant, also known as a " Hobbs affidavit," may be sealed in whole or in part to protect the informant's identity. ( Id. at pp. 971-975, 30 Cal.Rptr.2d 651, 873 P.2d 1246 ; People v. Acevedo (2012) 209 Cal.App.4th 1040, 1052, 147 Cal.Rptr.3d 467.) Similarly, under Evidence Code section 1040, a public entity has a qualified right not to disclose official information if "[d]isclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice." ( Evid. Code, § 1040, subd. (b)(2).) This privilege applies to official non-public information obtained by prosecutors and their law enforcement counterparts. (See Wood v. Superior Court (2020) 46 Cal.App.5th 562, 584, 259 Cal.Rptr.3d 798 ; Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123, 130 Cal.Rptr. 257, 550 P.2d 161, overruled on other grounds by People v. Holloway (2004) 33 Cal.4th 96, 131, 14 Cal.Rptr.3d 212, 91 P.3d 164.)

EFF argues we should apply the four-part test in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 86 Cal.Rptr.2d 778, 980 P.2d 337 ( NBC Subsidiary ) to determine whether the trial court properly found the Hobbs affidavits should not be unsealed under section 1534(a). But EFF does not cite, and we are unaware of, any case in which that test was used to evaluate whether a Hobbs affidavit should be unsealed.⁴

On the other hand, Hobbs outlines a procedure trial courts must follow to determine whether to unseal a Hobbs affidavit. ( Hobbs , supra , 7 Cal.4th at pp. 972-975, 30 Cal.Rptr.2d 651, 873 P.2d 1246.) "The court's first step is to determine whether the affidavit or any major portion of it has been properly sealed. [Citation.] This question entails two determinations: ‘It must first be determined whether sufficient grounds exist for maintaining the confidentiality of the informant's identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informant's identity.’ [Citation.] If the court ‘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...