People v. Hobbs

• Decision Date: 30 September 1991
• Citation: 286 Cal.Rptr. 135,12 Cal.App.4th 957
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 234 Cal.App.3d 1175, 12 Cal.App.4th 957, 18 Cal.App.4th 188, 23 Cal.App.4th 427, 6 Cal.App.4th 455 234 Cal.App.3d 1175, 12 Cal.App.4th 957, 18 Cal.App.4th 188, 23 Cal.App.4th 427, 6 Cal.App.4th 455 The PEOPLE, Plaintiff and Respondent, v. Janet Marie HOBBS, Defendant and Appellant. 3 Crim. C006228.

Page 135

286 Cal.Rptr. 135

Previously published at 234 Cal.App.3d 1175, 12 Cal.App.4th 957, 18 Cal.App.4th 188, 23 Cal.App.4th 427, 6 Cal.App.4th 455

234 Cal.App.3d 1175, 12 Cal.App.4th 957, 18 Cal.App.4th 188,

23 Cal.App.4th 427, 6 Cal.App.4th 455

The PEOPLE, Plaintiff and Respondent, v. Janet Marie HOBBS, Defendant and Appellant.

3 Crim. C006228.

Court of Appeal, Third District, California.

Sept. 30, 1991.

Review Granted Jan. 16, 1992.

[12 Cal.App.4th 431] David W. Vasquez and Curry, Vasquez & Hansen, Inc., Marysville, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehard, Chief Asst. Atty. Gen., Arnold O. Overroye, Sr. Asst. Atty. Gen., Edmund D. McMurray and Doris A. Calandra, Deputies Atty. Gen., for plaintiff and respondent.

DAVIS, Associate Justice.

Defendant was convicted on her plea of no contest to one count of having under her control or making available a room or space for the purpose of manufacturing, storing or distributing a controlled substance (methamphetamine). (Health & Saf.Code, § 11366.5, subd. (a).) The evidence against her was seized under a search warrant for stolen property which was based on information provided by a confidential informant.

In order not to disclose the identity of the confidential informant whose statements were set forth in the affidavit accompanying the search warrant, the court sealed all, save the introductory portions, of the affidavit. On appeal defendant asserts that by doing so the court denied her the right to challenge the magistrate's finding of probable cause to issue the search warrant and to traverse the warrant by attacking the veracity of the facts relied on by the prosecution to establish probable cause. We agree.

Normally a trial court can redact those portions of the affidavit identifying the informant without violating due process if the redaction affords defendant access to the material facts the prosecution is relying on to establish probable cause. Here, however, the material facts proffered by the prosecution as probable cause to search disclose the identity of the informant. We hold that in such circumstances either the material facts from the affidavit relied on by the prosecution to establish probable cause to search must be disclosed to the defendant or the evidence seized or obtained through the use of the warrant must be suppressed. ¹

The prosecution in this case elected not to disclose the identity of the informant by asserting the privilege set forth in Evidence Code section 1041. ² Since there was no way to redact the information identifying the informant while retaining the material facts relied on by the prosecution to establish probable cause to search, defendant was deprived of her constitutional right to challenge the search warrant. Accordingly, the motion to suppress should have been granted and the evidence suppressed. We reverse the judgment of conviction.

FACTS

Based on information there was stolen property at defendant's home, Yuba County Sheriff's Detectives obtained a search warrant for that location. In executing the warrant the officers found methamphetamine.

The only reference to defendant or her residence in the public portion of the affidavit simply lists defendant's home as a location where stolen property was believed to be located. The affidavit also refers to an attached "Exhibit C." Exhibit C contained information provided by a confidential informant and was sealed by the issuing magistrate. Before issuing the warrant the magistrate "examined" the informant to establish the informant's reliability.

Defendant moved to quash the warrant, to suppress evidence seized under it, for disclosure of the informant's identity, and for discovery of the sealed Exhibit C. The grounds for these motions were that the public portion of the warrant did not establish probable cause to search defendant's home and that defendant's right to due process was violated by denying access to that portion of the warrant which established probable cause. Defendant also argued she had a right to discovery of the sealed exhibit in order to determine whether there was a basis to traverse the warrant by attacking the veracity of the facts relied on by the prosecution to establish probable cause to search.

In opposition to defendant's motion the prosecution argued the informant's identity did not have to be disclosed because under section 1041 the information was privileged; and that no order adverse to the prosecution need be entered pursuant to section 1042, subdivision (a), because pursuant to section 1042, subdivision (b) the information was sought to attack a warrant valid on its face. ³

Following an in camera hearing on the matter, the court found the public portion of the warrant and affidavit did not establish probable cause and that probable cause was founded only on the information contained in the sealed exhibit. The court further found the informant would not be a witness material to the issue of the guilt of defendant. In addition the court determined disclosure of any of the information in the sealed exhibit would reveal the informant's identity. The court concluded it was proper to keep the sealed exhibit secret, and denied defendant's motions to the extent they concerned the warrant and the sealed exhibit.

DISCUSSION

The Due Process Clause of the Fourteenth Amendment affords defendant the right to challenge the magistrate's finding of probable cause to search, and the right to attack the veracity of the facts relied on by the prosecution to establish probable cause to search. To make such challenges defendant must have access to the material facts relied on by the prosecution to establish probable cause to search. We hold that if, as was the case here, the prosecution's successful assertion of the privilege to keep the informant's identity secret prevents defendant from learning the material facts relied on by the prosecution to establish probable cause, a motion to suppress the evidence seized pursuant to the warrant must be granted.

1. Propriety of Appeal

We first consider whether defendant's assignment of error is properly preserved for appellate review after having entered a no contest plea. "Issues cognizable on an appeal following a guilty 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; Pen.Code, § 1237.5.) ⁴ An exception to this general statutory rule is set forth in Penal Code section 1538.5, subdivision (m), whereby a defendant may preserve for appeal the issue of the propriety of a denial of a motion to suppress evidence resulting from a claimed unlawful search and seizure. ⁵ (Pen.Code, § 1538.5, subd. (m).) Here, the Attorney General characterizes defendant's challenge to the sealing of the search warrant affidavit as an appeal of the court's denial of her motion to disclose the identity of the informant. If so, such a challenge would relate to defendant's guilt rather than the legality of the search and would indeed have been waived by defendant's no contest plea. (People v. Castro (1974) 42 Cal.App.3d 960, 963, 117 Cal.Rptr. 295; People v. Duval (1990) 221 Cal.App.3d 1105, 1114, 271 Cal.Rptr. 240.) Our review of the record convinces us that defendant's challenge to the sealing of the affidavit addressed the legality of the search and accordingly is cognizable on appeal pursuant to Penal Code section 1538.5, subdivision (m).

In People v. Castro, supra, 42 Cal.App.3d at page 963, 117 Cal.Rptr. 295 and People v. Duval, supra, 221 Cal.App.3d at page 1114, 271 Cal.Rptr. 240, the court held an order denying a motion to disclose the identity of an informant is not subject to review on appeal after the defendant has entered a plea of guilty or no contest. In so ruling the court in each case held that this is so because the purpose of the motion relates solely to the defendant's guilt or innocence, an issue which is removed by the guilty or no contest plea. (People v. Castro, supra, 42 Cal.App.3d at p. 963, 117 Cal.Rptr. 295; People v. Duval, supra, 221 Cal.App.3d at p. 1114, 271 Cal.Rptr. 240.)

In People v. Seibel (1990) 219 Cal.App.3d 1279, 269 Cal.Rptr. 313 the Attorney General contended that defendant's motions to unseal a search warrant affidavit were not motions to suppress evidence under Penal Code section 1538.5, and that therefore the defendant's guilty plea precluded appealing the denial of those motions. The court held "... that the appeal is properly before us. It is apparent from the procedural history of the case set out above that appellant repeatedly raised the issue of 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 heargued 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 had information 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...