Hines v. Superior Court, A041921
| Decision Date | 19 August 1988 |
| Docket Number | No. A041921,A041921 |
| Citation | 203 Cal.App.3d 1231,251 Cal.Rptr. 28 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Robert Ray HINES, Petitioner, v. The SUPERIOR COURT of the State of California for the County of Contra Costa, Respondent, The PEOPLE of the State of California, Real Party in Interest. |
Patrick H. Hetrick, Richmond, for petitioner.
John K. Van de Kamp, Atty. Gen., Landra E. Rosenthal, Deputy Atty. Gen., San Francisco, for real party in interest.
Petitioner challenges the denial of his motion to set aside the information against him pursuant to section 995 of the Penal Code.
Petitioner was charged by complaint with possession for sale of base cocaine, cocaine and heroin on December 1, 1987, in violation of sections 11351.5 and 11351 of the Health & Safety Code. At the preliminary hearing held on February 5, 1988, Officer Wayne Weir testified that on December 1, 1987, he was working on covert surveillance in the investigation of sales of narcotics in North Richmond. He was watching the corner of Fifth and Grove through binoculars and observed a number of transactions in which petitioner appeared to be exchanging something for money. The transactions involved either passing pedestrians or passing motorists. Officer Weir concluded that the transactions involved narcotics and by radio asked for the arrest of petitioner and a juvenile who appeared to have a stash of drugs from which petitioner was dealing. Officers Rubin and Wells responded and petitioner was arrested.
On cross-examination, Officer Weir was asked where he and his partner were located when they made their observations. Officer Weir asserted the official information privilege of section 1040 subdivision (b) of the Evidence Code. 1 The court ruled that the privilege applied and the cross-examination was limited to questions regarding any obstructions or limitations to the observations. Thus, Officer Weir testified that the location was clear and unobstructed; that his observation point was about 50 yards from petitioner; that it was daylight and somewhat overcast. At the close of cross-examination, defense counsel took "formal exception" to the application of the privilege. On redirect, Officer Weir testified that the location was "currently used as an ongoing operation for investigations" and that ongoing investigations would be jeopardized by disclosure.
Officer Wells testified that he responded to Weir's radioed directions to detain petitioner and the juvenile and was directed by Weir to the stash of narcotics. When he found the stash of narcotics, he arrested the two for possession of narcotics for sale. Both subjects were strip searched and a hypodermic needle was found on petitioner. On cross-examination, Wells testified that he was supervising the drug task force that morning. He told Weir to position himself so that he could watch the street activity at Fifth and Grove. He did not tell him to use a specific location and did not know where Weir made his observations. Apparently he did not observe any of the activity of appellant as related by Officer Weir.
Petitioner was held to answer the charges. He moved to set aside the information pursuant to section 995 on the ground that refusing to allow cross-examination of Officer Weir concerning his location required that theinformation be set aside. The motion was denied and the instant petition followed. (Pen.Code, § 999a.)
Section 1040 provides a privilege for "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." (Subd. (a).) A public entity has a privilege to refuse to disclose official information if "[d]isclosure ... 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; ..." (Subd. (b)(2).)
Petitioner contends that Weir's surveillance location does not come within the privilege because the record does not show that the location was "acquired in confidence ... during the course of his ... duty." "Officer Weir did not 'acquire' knowledge of the location from which he was operating; he simply selected it, and chose to keep it secret." The effect of the magistrate's ruling, argues petitioner, is to elevate anything that comes within an officer's knowledge during an investigation to "official information."
Petitioner takes too restrictive a view of the statutoryword "acquire." The term does not exclude information that is generated by the person claiming the privilege. To acquire means "to come into possession ... of often by some uncertain or unspecified means." (Webster's Third New International Dictionary.) To hold, as petitioner seems to suggest, that the location could be official information if petitioner was told of it by Officer Wells rather than discovering it himself creates a distinction which is neither required by the statute nor consistent with the purpose of the privilege. We hold the surveillance location was information to which the privilege could apply.
However, as Justice Kaus commented, the exercise of the privilege under section 1040 is a mixed blessing because of the requirement of an adverse finding in section 1042. (Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 830, 133 Cal.Rptr. 325.) Evidence Code section 1042, subdivision (a) provides: "Except where disclosure is forbidden by an act of the Congress of the United States, if a claim of privilege under this article by the state or a public entity in this state is sustained in a criminal proceeding, the presiding officer shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material."
The adverse finding is only required if the privileged information is material. In re David W. (1976) 62 Cal.App.3d 840, 133 Cal.Rptr. 342, the defendant was accused of auto theft. It became important to the defense to ascertain the identification number of the car which was placed in a secret location...
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People v. Lewis, A120636.
...of the information that outweighs the necessity for disclosure in the interest of justice . . . ." In Hines v. Superior Court (1988) 203 Cal.App.3d 1231 (Hines), this court held that the location of a police surveillance post falls within the ambit of the privilege granted by section 1040. ......
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People v. Walker
...testimony. Citing People v. Montgomery (1988) 205 Cal.App.3d 1011, 1015-1024, 252 Cal.Rptr. 779 and Hines v. Superior Court (1988) 203 Cal.App.3d 1231, 1234-1236, 251 Cal.Rptr. 28 defendant claims that the judgment must be reversed because the location was material to the issue of guilt and......
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People v. Montgomery
...Officer Weir's testimony did not provide a basis for the People's claim of the privilege. We do not agree. In Hines v. Superior Court (1988) 203 Cal.App.3d 1231, 251 Cal.Rptr. 28, Division Four of this District held on facts practically identical to those before us that the surveillance loc......
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Com. v. Jennings
...existence of the surveillance location privilege. See State v. Garcia, 131 N.J. 67, 618 A.2d 326 (1993); Hines v. Superior Court, 203 Cal.App.3d 1231, 251 Cal.Rptr. 28 (1 Dist., 1988); Commonwealth v. Lugo, 406 Mass. 565, 548 N.E.2d 1263 (1990); Anderson v. United States, 607 A.2d 490 (D.C.......
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...v. Superior Court, 20 Cal. App. 4th 1818, 25 Cal. Rptr. 2d 712 (4th Dist. 1993)—Ch. 4-C, §1.4.3(1)(a)[1][b] Hines v. Superior Court, 203 Cal. App. 3d 1231, 251 Cal. Rptr. 28 (1st Dist. 1988)—Ch. 4-C, §7.2.2(2); §7.4.2; §8.4.4(2)(b)[1] Hinojosa v. Superior Court, 55 Cal. App. 3d 692, 127 Cal......
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Chapter 4 - §7. Official-information privilege
...through an employee's own discovery, or it may be given to the employee by another party. E.g., Hines v. Superior Ct. (1st Dist.1988) 203 Cal.App.3d 1231, 1234 (law-enforcement surveillance location was confidential; acquiring information includes information generated by person claiming pr......
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Chapter 4 - §8. Informant privilege
...in not admonishing jury that prosecution witness had received additional benefits from state); Hines v. Superior Ct. (1st Dist.1988) 203 Cal.App.3d 1231, 1236 (proper order under facts was to strike testimony). [2] Material to validity of warrantless search or seizure. If the informant's id......