People v. Hobbs

• Citation: 30 Cal.Rptr.2d 651,873 P.2d 1246,7 Cal.4th 948
• Decision Date: 06 June 1994
• Docket Number: No. S023739,S023739
• Court: United States State Supreme Court (California)
• Parties: , 873 P.2d 1246, 63 USLW 2031 The PEOPLE, Plaintiff and Respondent, v. Janet Marie HOBBS, Defendant and Appellant.

Page 651

30 Cal.Rptr.2d 651

7 Cal.4th 948, 873 P.2d 1246, 63 USLW 2031

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

No. S023739.

Supreme Court of California,

In Bank.

June 6, 1994.

Curry, Vasquez & Hansen, and David W. Vasquez, Marysville, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye and Robert R. Anderson, Asst. Attys. Gen., Edmund D. McMurray, Joel E. Carey and Doris A. Calandra, Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Chief Justice.

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). (Health & Saf.Code, § 11366.5, subd. (a).) The evidence against her was seized pursuant to a search warrant for stolen property that was based on information furnished by a confidential informant regarding several persons suspected of receiving stolen property.

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 it, as well as a separate confidential attachment to the search warrant application identified as "Exhibit C," were thereafter placed under seal in order to avoid disclosing the identity of the informant.

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 (Pen.Code, § 1538.5, subd. (d)), traverse the warrant, and discover the identity of the confidential informant. The motions were ultimately denied, and the disputed documents ordered to remain under seal. Defendant's no contest plea followed. She was placed on three years' probation, conditioned on serving three days in the county jail.

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 Pen.Code, § 1237.5.)

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 been waived by her plea of no contest. (People v. Castro (1974) 42 Cal.App.3d 960, 963, 117 Cal.Rptr. 295 [order denying motion to disclose identity of confidential informant not reviewable on appeal after plea of guilty or no contest because purpose of motion related solely to defendant's guilt or innocence]; People v. Duval (1990) 221 Cal.App.3d 1105, 1114, 271 Cal.Rptr. 240 [same].)

In contrast, an exception to the general rule barring appeal is set forth in Penal Code section 1538.5, subdivision (m), which provides, in pertinent part, that "[a] defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty [or no contest]. Such review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for the return of property or the suppression of the evidence." Accordingly, if defendant's challenge to the sealing of the affidavit was directed to the legality of the search, it is cognizable on appeal pursuant to that statutory exception.

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 Penal Code section 1538.5, and that defendant's guilty plea therefore precluded an appeal of the lower courts' orders denying those motions. (219 Cal.App.3d at p. 1285, 269 Cal.Rptr. 313.) In rejecting the People's position and finding the appeal properly taken, the Seibel court explained:

"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 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 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, 125-126,82Cal.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, 269 Cal.Rptr. 313.)

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, 269 Cal.Rptr. 313, 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, the United States Supreme Court has described the policy behind the informant privilege as follows:

" '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...