IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S149890
v.
Ct.App.
4/3
G034189
ANTHONY ANDREW GALLAND,
Orange
County
Defendant and Appellant.
) Super.
Ct.
No.
01CF2350
In this case, City of Buena Park police obtained a warrant to search
defendant’s home, vehicle, and person for methamphetamine and evidence of
methamphetamine sales. After the warrant was executed, a portion of the search
warrant affidavit was ordered sealed to protect the identity and safety of one or
more confidential informants. The magistrate ordered that this portion of the
affidavit be secured in the Buena Park Police Department property room. The
sealed affidavit was subsequently brought to court to enable the Orange County
Superior Court to rule on defendant’s motions under Penal Code section 1538.5 to
quash and traverse the warrant and to suppress the evidence. The motions were
denied, and the original sealed portion of the affidavit was returned to police
custody.
When defendant appealed the ruling, the Court of Appeal discovered that
the police department had purged its files of the original sealed portion of the
affidavit. The Court of Appeal declared that the magistrate’s order concerning the
1
custody of the affidavit was unsupported by any authority and held instead that the
Penal Code required the magistrate “to retain the entire search warrant affidavit
when the warrant is issued or at the time the return is filed.” The Court of Appeal
reasoned further that the remaining record was inadequate to permit meaningful
appellate review and therefore reversed the denial of defendant’s motions to quash
and traverse the warrant and to suppress the evidence seized under the warrant,
even though the superior court had determined, as a matter of fact, that a substitute
five-page document provided by the Orange County District Attorney’s Office
was an unsigned version of the same warrant affidavit that had been provided to
the magistrate.
We agree the magistrate erred in directing that the original sealed portion of
the affidavit be retained by the police department, but not for the reasons stated by
the Court of Appeal. A sealed affidavit in support of a search warrant may be
retained by the requesting law enforcement agency only upon a showing (1) that
disclosure of the information would impair further investigation of criminal
conduct or endanger the safety of the confidential informant or the informant’s
family; (2) that security procedures at the court clerk’s office governing a sealed
search warrant affidavit are inadequate to protect the affidavit against disclosure to
unauthorized persons; (3) that security procedures at the law enforcement agency
or other entity are sufficient to protect the affidavit against disclosure to
unauthorized persons; (4) that the law enforcement agency or other entity has
procedures to ensure that the affidavit is retained for 10 years after final
disposition of the noncapital case, permanently in a capital case, or until further
order of the court (see Gov. Code, § 68152, subd. (j)(18)), so as to protect the
defendant’s right to meaningful judicial review; and (5) that the magistrate has
made a sufficient record of the documents that were reviewed, including the sealed
materials, so as to permit identification of the original sealed affidavit in future
2
proceedings or to permit reconstruction of the affidavit, if necessary. Because the
People failed to make such a showing here, the magistrate erred in allowing the
original sealed portion of the affidavit to be retained by the police department.
We further find, however, that the Court of Appeal was mistaken in
concluding that the magistrate’s error, and the subsequent loss of the original
sealed search warrant affidavit, rendered it impossible to safeguard defendant’s
right to meaningful appellate review. Although the original affidavit has been lost,
the superior court determined that the five-page unsigned document submitted by
the district attorney’s office in its place was otherwise identical to the affidavit the
superior court had reviewed prior to denying defendant’s motion to suppress, and
that factual finding is supported by substantial evidence. Moreover, subsequent to
the Court of Appeal’s decision, the Orange County Superior Court discovered a
copy of the original sealed search warrant affidavit in its files. Accordingly, we
reverse the judgment of the Court of Appeal and remand the matter for further
proceedings consistent with this opinion.
BACKGROUND
We take our facts largely from the prior Court of Appeal opinions arising
from defendant’s criminal conviction.
On August 9, 2001, Judge Daniel B. McNerney issued a search warrant for
defendant Anthony Andrew Galland’s home, vehicle, and person. The warrant
was supported by Buena Park Police Detective David Hankins’s affidavit of
probable cause that methamphetamine and items tending to establish sales of
methamphetamine would be found there and was executed during the evening
hours of August 9. Defendant was arrested after methamphetamine was found on
his person and in the trunk of his vehicle. The police subsequently found
methamphetamine and marijuana, evidence of drug sales activities, and guns in
defendant’s mobile home.
3
Eight days later, Hankins appeared before Judge James P. Marion with the
original search warrant, warrant affidavit, return, and property report. Hankins
requested an order sealing the portion of the search warrant affidavit that
contained the probable cause showing in order to protect the identity of a
confidential informant, relying on the holding in People v. Hobbs (1994) 7 Cal.4th
948 (Hobbs). Hankins further requested that the sealed portion of the warrant be
secured in the Buena Park Police Department property room. Judge Marion
signed the order.
Hankins filed the sealed search warrant, return, and property report with the
clerk of the superior court, but retained the sealed portion of the original warrant
affidavit and transported this sealed document to the Buena Park Police
Department for storage in its property room. The partial search warrant affidavit
filed with the court included Hankins’s training and experience but did not identify
the basis for his belief that a search of defendant’s home, person, and property
would reveal evidence of a crime. The portion retained by Hankins contained the
facts necessary to establish probable cause for the search. Sometime later, for
reasons not disclosed in the record, the court ordered the search warrant, partial
affidavit, return, and property report in its possession to be unsealed and available
to defendant’s attorney.
In June 2002, defendant filed motions to quash and traverse the search
warrant and to suppress evidence seized as a result of the search. He challenged
the validity of the warrant on numerous grounds, including the fact that Hankins
had failed to file the complete original search warrant affidavit or a copy in the
court file. Defendant requested the trial court conduct an in camera review of the
entire warrant affidavit to determine whether it contained probable cause and
whether any of the sealed affidavit could be disclosed without jeopardizing the
identity of the confidential informant. The prosecution opposed the motion,
4
arguing that no legal authority required the issuing magistrate to retain the original
warrant affidavit while the search warrant was executed and, in the alternative,
that suppression of the evidence would not be a proper remedy assuming a
violation of proper procedure.
On August 2, 2002, Judge Robert R. Fitzgerald held an evidentiary hearing
on defendant’s motions. Defendant orally renewed his request for an in camera
review of the sealed portion of the warrant affidavit. Judge Fitzgerald did not rule
on defendant’s request for in camera review, but proceeded to conduct an
evidentiary hearing on a knock-notice issue raised by the defense. At the
conclusion of the evidentiary hearing, Judge Fitzgerald ruled as follows:
“Discrepancy in the testimony is resolved in favor of law enforcement as opposed
to a convicted criminal defendant in the same case. [¶] In that regard the motion
in its entirety, unless there’s other argument shall be denied. And that concludes
our 1538.5.” Defense counsel again requested an in camera review of the warrant
affidavit or a continuance to file the appropriate discovery motion. This request
was denied. Defendant pleaded guilty 17 days later to transporting
methamphetamine and to possessing methamphetamine for sale and admitted
arming enhancements as to both counts as well as five prior prison term
allegations. After he was sentenced to five years in prison, he filed an appeal from
the court’s order denying his motions to quash and traverse the warrant and to
suppress evidence and his request to file a discovery motion.
In a published opinion, the Court of Appeal held that Judge Fitzgerald’s
denial of defendant’s request for an in camera review of the warrant affidavit
violated the procedure set forth in Hobbs, supra, 7 Cal.4th 948. (People v.
Galland (2004) 116 Cal.App.4th 489, 492-494.) The Court of Appeal noted that
the sealed portion of the warrant affidavit, which Hankins had retained, was not a
part of the appellate record. From this omission, the Court of Appeal concluded
5
that Judge Fitzgerald had not reviewed the affidavit. (Id. at p. 494.) The Court of
Appeal conditionally reversed the judgment to allow the trial court to conduct an
in camera review of the search warrant affidavit and to prepare a proper record of
those proceedings. (Id. at p. 495.)
Judge Fitzgerald conducted the in camera review on June 29, 2004. By
stipulation the parties agreed that Judge Marion had ordered a portion of the
search warrant affidavit sealed and had directed Hankins, now an investigator for
the district attorney’s office, to retain this document in the Buena Park Police
Department property room. They further agreed that Hankins would testify if
called as a witness that he had transported the sealed portion of the original search
warrant affidavit to the Buena Park Police Department property room for storage,
that he had not altered or changed the original, and that he had brought the original
sealed affidavit to court for the June 29 hearing. The court accepted the parties’
stipulation and proceeded in chambers with Hankins.
Judge Fitzgerald stated that based on his in camera review of the
documents, a “conversation” with Hankins, and Hankins’s assurance that he had
provided “the entirety of the package,” the reasons for sealing the warrant affidavit
remained and the defense was not entitled to any further disclosure. Judge
Fitzgerald again denied defendant’s motion to quash and traverse the search
warrant. During the in camera hearing, Judge Fitzgerald ordered copies of the
original documents to be sealed and placed in the court file and the original sealed
documents to be returned “to the law enforcement agent.”
On July 8, 2004, defendant filed a timely notice of appeal from the trial
court’s denial of his motions to quash or traverse the warrant and to suppress
evidence. On February 28, 2005, the Court of Appeal received an affidavit from
the clerk of the appellate division of the superior court. The clerk averred that the
sealed portion of the original search warrant affidavit, the part Hankins had
6
retained for storage at the Buena Park Police Department, was not in the court’s
file. The clerk further stated that a sergeant from the Buena Park Police
Department had advised that the sealed portion of the original search warrant
affidavit was “purged/destroyed.” The Buena Park Police Department confirmed
this information by letter dated March 2, 2005.
On March 9, 2005, the Court of Appeal received a five-page facsimile from
the Orange County District Attorney’s Office, which included what appeared to be
an unsigned version of the entire warrant affidavit. Because the document
included information that might identify a confidential informant, the Court of
Appeal ordered the five-page facsimile sealed. A copy of the sealed facsimile was
transmitted back to the superior court for it to determine whether this five-page
facsimile was the same document the superior court had reviewed in camera on
June 29, 2004. If the superior court were to authenticate the five-page facsimile,
the court was to augment the appellate record and prepare a supplemental clerk’s
transcript.
On April 12, 2005, Judge Fitzgerald reviewed the five-page facsimile
pursuant to the Court of Appeal’s order and determined that it was in substance the
same as the affidavit he had reviewed in camera on June 29, 2004. He also
discovered “another piece of paper that was in another sealed envelope.” This
newly discovered piece of paper, according to the Court of Appeal, contains
evidence relevant to the probable cause determination and is likely to reveal the
identity of a confidential informant if made public. Without explaining the origin
of this document, Judge Fitzgerald determined that the newly discovered
document had been inadvertently omitted from the superior court file. Judge
Fitzgerald ordered the court’s file augmented with a supplemental clerk’s
transcript, “including this courts find [sic] and the sealed affidavit.”
7
In a second published opinion, the Court of Appeal held that allowing the
police to retain a portion of the original search warrant affidavit was contrary to
state law, deprived defendant of an adequate appellate record, and violated his
right to due process. The Court of Appeal reversed the judgment and remanded
the matter to permit defendant to withdraw his guilty plea.
Subsequent to that decision, Judge Kazuharu Makino calendared the matter
for the purpose of informing the parties that the Orange County Superior Court
Clerk’s Office had located a filed copy of the sealed materials that were
considered by Judge Fitzgerald at the June 29, 2004, in camera hearing. The
materials, although temporarily lost, had been in the possession of the court “all
that time.” When the defense claimed that there was still “a debate about what
those materials are, given the history,” Judge Makino declared that he was “not
having any kind of hearing resolving anything.”
DISCUSSION
Evidence Code section 1041 codifies the common law privilege against
disclosure of the identity of a confidential informant. Evidence Code section
1042, subdivision (b) states, in particular, that disclosure of an informant’s identity
is not required to establish the legality of a search pursuant to a warrant. A
corollary rule provides “that ‘if disclosure of the contents of [the informant’s]
statement would tend to disclose the identity of the informer, the communication
itself should come within the privilege.’ ” (Hobbs, supra, 7 Cal.4th at pp. 961-
962.) “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.” (Id. at
p. 962; cf. Pen. Code, § 1534, subd. (a).) Instead, a court may order any
identifying details to be redacted or, as in this case, a court may adopt “the
8
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.” (Hobbs, supra, at p. 963.)
When a defendant seeks to quash or traverse a warrant where a portion of
the supporting affidavit has been sealed, the relevant materials are to be made
available for in camera review by the trial court. (Hobbs, supra, 7 Cal.4th at p.
963; see Evid. Code, § 915, subd. (b).) The court should determine first whether
there are sufficient grounds for maintaining the confidentiality of the informant’s
identity. If so, the court should then determine whether the sealing of the affidavit
(or any portion thereof) “is necessary to avoid revealing the informant’s identity.”
(Hobbs, supra, 7 Cal.4th at p. 972.) Once the affidavit is found to have been
properly sealed, the court should proceed to determine “whether, under the
‘totality of the circumstances’ presented in the search warrant affidavit and the
oral testimony, if any, presented to the magistrate, there was ‘a fair probability’
that contraband or evidence of a crime would be found in the place searched
pursuant to the warrant” (if the defendant has moved to quash the warrant) or
“whether the defendant’s general allegations of material misrepresentations or
omissions are supported by the public and sealed portions of the search warrant
affidavit, including any testimony offered at the in camera hearing” (if the
defendant has moved to traverse the warrant). (Id. at pp. 974, 975.) The
prosecutor may be present at the in camera hearing; the defendant and defense
counsel are to be excluded unless the prosecutor elects to waive any objection to
their presence. However, defense counsel should be afforded the opportunity to
submit written questions, reasonable in length, which shall be asked by the trial
judge of any witness called to testify at the proceeding. (Id. at p. 973.)
These procedures were “designed to strike a fair balance between the
People’s privilege to refuse disclosure of a confidential informant’s identity and
9
the defendant’s limited discovery rights in connection with any challenge to the
search warrant’s validity.” (Hobbs, supra, 7 Cal.4th at p. 964.) As we have noted,
“ ‘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.’ ” (Id.
at p. 968.) Thus, “ ‘[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.’ ” (Ibid.) The
“strong and legitimate interest in protecting the informant’s identity” (People v.
Luttenberger (1990) 50 Cal.3d 1, 19) derives from the need to protect the safety of
the informant and the informant’s family, the need to preserve the informant’s
usefulness in current and future investigations, and the need to assure others who
are contemplating cooperation with law enforcement of their safety as well.
(McCray v. Illinois (1967) 386 U.S. 300, 308-309.)
In this case, the magistrate ordered the search warrant affidavit to be sealed,
and the superior court reviewed the sealed affidavit in camera, ordered that it
remain sealed, and denied defendant’s motions to quash and traverse the warrant.
Our review, however, does not encompass any of those rulings. The parties have
asked us instead to decide where the original sealed warrant affidavit should be
stored once the search warrant has been executed and what should happen to
defendant’s challenges to the warrant on appeal when the original sealed affidavit
has been lost. Neither of these questions is answered in Hobbs, but Hobbs does
inform our analysis of the important competing interests at stake.
A
The Court of Appeal reasoned that the statutory scheme governing the
issuance of a warrant (Pen. Code, §§ 1523-1541) “ ‘read as a whole’ requires the
magistrate to retain the entire search warrant affidavit when the warrant is issued
10
or at the time the return is filed.” This was so, the Court of Appeal continued,
because an “affidavit” as used in sections 1523 et seq. includes “the entire
affidavit,” regardless of whether part of it has been sealed, and is thus “a court
record subject to the pertinent Government Code sections,” including Government
Code section 69846, which provides: “The clerk of the superior court shall safely
keep or dispose of according to law all papers and records filed or deposited in any
action or proceeding before the court.”
Thus, as to papers or records filed or deposited in any action, the superior
court may either “safely keep” them or “dispose of [them] according to law.”
(Gov. Code, § 69846.) Defendant argues that “[i]n this context, the term ‘dispose’
clearly refers to destruction” and that “[o]ne does not ‘dispose’ of documents by
giving them to the police for safekeeping.” Certainly the destruction of court
records, which is governed by Government Code sections 68152 and 68153, is
included within the meaning of “dispose” in Government Code section 69846.
Section 68152 sets forth the retention periods for various categories of court
records, including search warrants, which may not be destroyed until at least 10
years after the final disposition in a noncapital case. (Gov. Code, § 68152, subd.
(j)(18).) After that period, section 68153 provides that such records “may be
destroyed. Destruction shall be by shredding, burial, burning, erasure,
obliteration, recycling, or other method approved by the court, except confidential
and sealed records, which shall not be buried or recycled unless the text of the
records is first obliterated.”
However, a review of the Penal Code reveals that the destruction of court
records under Government Code sections 68152 and 68153 is not the only way the
clerk of court may “dispose” of papers and records filed or deposited in any action
or proceeding “according to law.” (Gov. Code, § 69846.) Penal Code section
1417.5 provides that 60 days after the final determination of a criminal action or
11
proceeding, the clerk of court shall “dispose” of exhibits introduced or filed in the
proceeding by releasing them to the person who was in lawful possession of the
exhibits or to the person establishing title to or a right to possession of the exhibits.
(Pen. Code, § 1417.5, subd. (b)(1), (2).) If that person fails to apply for return of
the exhibit, the clerk of court is instructed to dispose of the item by transferring it
to the appropriate county agency for sale (id., § 1417, subd. (c)(2)) or, if the item
is money or currency, by transferring it to the county treasurer with instructions to
publish a public notice. (Id., § 1420.) Even before the action has been finally
determined, the court may order an exhibit released to the appropriate party “upon
stipulation of the parties or upon notice and motion” under specified conditions
(id., § 1417.2) or where the exhibit “poses a security, storage, or safety problem.”
(Id., § 1417.3.) And, in a situation analogous to the current one, an application for
and an order approving the interception of any wire or electronic communication
“shall be sealed by the judge” and “[c]ustody of the applications and orders shall
be where the judge orders.” (Id., § 629.66; see also id., § 629.64 [custody of
recordings of any intercepted wire or electronic communication “shall be where
the judge orders”].)
As demonstrated by these examples, the statutory scheme contemplates that
certain court records may, even prior to the final determination of the action, be
retained in the custody of someone other than the clerk of court. Although the
Penal Code does not explicitly identify the custodian for a sealed search warrant
affidavit,1 we note that the term “according to law” is not limited to statutory law
1
The California Rules of Court do not provide an explicit answer, either.
Although sealed records “must be securely filed and kept separate from the public
file in the case” under rule 2.551(f) of the California Rules of Court, this rule does
not apply to “records that are required to be kept confidential by law” (Cal. Rules
of Court, rule 2.550(a)(2)), such as “search warrant affidavits sealed under People
(footnote continued on next page)
12
but encompasses decisional law as well. (Cf. Estate of Ford (2004) 32 Cal.4th
160, 173 [“Evidence Code section 115 provides that the burden of proof in civil
cases is a preponderance of the evidence ‘[e]xcept as otherwise provided by law.’
The law providing for a higher standard of proof may include decisional law”].)
For example, we have recognized that confidential law enforcement personnel
files that are reviewed in camera by the court under Pitchess v. Superior Court
(1974) 11 Cal.3d 531 may be retained by the custodian of those records instead of
by the court, provided that the court makes an adequate record of what was
reviewed. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230; see also Cal.
Rules of Court, rule 2.551(g); cf. In re Waltreus (1965) 62 Cal.2d 218, 223 [trial
court need not retain documents reviewed by the court that “contain matters
unrelated to the defendant’s case whose disclosure would interfere with effective
law enforcement”].) Similarly, to determine whether the law permits a sealed
search warrant affidavit to be retained in the custody of an entity other than the
court, we must balance the public’s interest in preventing disclosure of the
confidential informant’s identity against the defendant’s interest in maintaining the
integrity of the record and in preserving that record for further judicial review.
(Cf. Hobbs, supra, 7 Cal.4th at pp. 971-972.)
(footnote continued from previous page)
v. Hobbs (1994) 7 Cal.4th 948.” (Advisory Com. com. to Cal. Rules of Court, rule
2.550.) Rule 2.585(b) provides that records examined by the court in a
confidential in camera proceeding must be filed “under seal” but does not specify
where those records must be kept. (See Cal. Rules of Court, rule 2.551(g); cf.
Tenn. R. Crim. Proc., rule 41(d) [“The magistrate shall prepare an original and two
exact copies of each search warrant. The magistrate shall keep one copy as a part
of his or her official records”].)
13
Defendant, like the Court of Appeal, contends that a search warrant
affidavit must be filed with the clerk of the superior court at the earliest
opportunity and must remain there until such time as the document is eligible to be
destroyed. (See Gov. Code, § 68152, subd. (j)(18).) The People, on the other
hand, argue that law enforcement should be permitted to seek an order allowing
the original sealed search warrant affidavit to be retained at a location other than
the court, as long as the court describes the materials reviewed with sufficient
particularity to permit authentication of those materials in future proceedings.
We find that neither position strikes the appropriate balance of these
important competing interests. Defendant’s approach gives too little weight to the
“strong and legitimate interest” (People v Luttenberger, supra, 50 Cal.3d at p. 19)
in securing the safety of the confidential informant and the likelihood that
informants will be reluctant to cooperate with law enforcement if the
confidentiality of their identities cannot be maintained. The People’s approach
fails to consider the possibility that the court, in certain circumstances, may be a
more secure location than a law enforcement agency for maintaining the integrity
of the record and preserving it for further judicial review. As the Court of Appeal
noted, a law enforcement agency (or its officers) should not be allowed to retain
court documents “simply because the agency prefers to maintain custody of
documents relating to the identity of a confidential informant.” In the absence of a
particularized showing, we must presume that the court clerk’s office can
safeguard the sealed documents in its possession. (People v. Martinez (1999) 22
Cal.4th 106, 125 [citing Evidence Code section 664]; People v. Smith (1965) 234
Cal.App.2d 404, 407.) By the same token, though, law enforcement should not be
put to the choice of either risking the safety of a confidential informant or
refraining from the prosecution of the crimes uncovered by the informant where
14
security procedures for sealed documents at the clerk’s office are demonstrably
inadequate.
In our view, a sealed search warrant affidavit, like search warrant affidavits
generally, should ordinarily be part of the court record that is maintained at the
court. Such a rule minimizes the potential for tampering with the record and
eliminates the need for time-consuming and cumbersome record-authentication
procedures. (E.g., People v. Martinez (2005) 132 Cal.App.4th 233, 239.)
However, a sealed search warrant affidavit may be retained by the law
enforcement agency upon a showing (1) that disclosure of the information would
impair further investigation of criminal conduct or endanger the safety of the
confidential informant; (2) that security procedures at the court clerk’s office
governing a sealed search warrant affidavit are inadequate to protect the affidavit
against disclosure to unauthorized persons; (3) that security procedures at the law
enforcement agency or other entity are sufficient to protect the affidavit against
disclosure to unauthorized persons; (4) that the law enforcement agency or other
entity has procedures to ensure that the affidavit is retained for 10 years after final
disposition of the noncapital case, permanently in a capital case, or until further
order of the court (see Gov. Code, § 68152, subd. (j)(18)), so as to protect the
defendant’s right to meaningful judicial review; and (5) that the magistrate has
made a sufficient record of the documents that were reviewed, including the sealed
materials, so as to permit identification of the original sealed affidavit in future
proceedings or to permit reconstruction of the affidavit, if necessary. Defendant is
correct that “there is nothing inconsistent with the preservation of confidentiality
and the retention of confidential information in sealed court files”—but that is so
only in the absence of a showing that court procedures concerning sealed
affidavits are inadequate to protect the affidavit against disclosure to unauthorized
persons. Where the record shows that court procedures are inadequate to protect
15
the informant’s identity—and that the law enforcement agency can protect the
informant’s identity and the integrity of the sealed affidavit—there is nothing in
the Penal Code or in the Constitution to bar the law enforcement agency from
retaining custody of the original sealed affidavit.
The circumstances in this case do not leave one with great confidence in
either the clerk’s office or in the police department. Although the superior court
made a copy of the sealed search warrant affidavit following the June 29, 2004,
hearing on defendant’s motions challenging the warrant, the clerk’s office was
unaware of its whereabouts for a significant period of time, and the record does
not reflect what security procedures (if any) governed the sealed affidavit during
that period. The police department did maintain the original affidavit in a secure
location, yet failed to ensure that the affidavit was retained for the requisite period
or to prevent its destruction. There is, of course, the possibility of error or
negligence in every human endeavor. Nonetheless, it may prove fruitful for all
involved parties to consider how confidential and sensitive documents under seal
might best be maintained with sufficient security and retained for the requisite
length of time. In particular, courts should endeavor to promptly address and
resolve security concerns identified by the People so that those confidential
records may be maintained securely at the court. This problem may merit
consideration as a statewide policy matter, and we suggest to the Judicial Council
that it establish a task force for that purpose.
Regardless of what eventually occurred, however, the magistrate here erred
in permitting the police department to retain custody of the original sealed search
warrant affidavit without a showing that the clerk’s office was unable to maintain
the sealed affidavit with adequate security and that the police department had
adequate procedures to maintain the sealed affidavit in a secure location and to
retain the affidavit for the requisite period of time, and without describing the
16
affidavit it reviewed with sufficient specificity so that a reviewing court in a future
proceeding could have confidence it was examining the same document.
We do not purport to exhaust the methods by which a magistrate may
create a record of a sealed search warrant affidavit that is not retained by the court,
but it may prove helpful for the magistrate to consider describing the sealed
document’s general physical characteristics (i.e., the number of pages or
paragraphs), marking each page of the affidavit with the magistrate’s initials,
directing the People to file a redacted version of the sealed affidavit, or other
methods to facilitate identification or reconstruction of the sealed document in
future proceedings. (Cf. People v. Mooc, supra, 26 Cal.4th at p. 1229.)
B
Defendant, like the Court of Appeal, contends that the error that led to the
destruction of the original sealed search warrant affidavit rendered meaningful
appellate review of the warrant impossible and that the due process violation
requires suppression of the evidence seized under the warrant. We disagree. The
record reconstructed by the superior court is sufficient to permit meaningful
appellate review of the warrant.
“ ‘A defendant in a criminal case is entitled to an appellate record adequate
to permit “meaningful appellate review.” ’ ” (People v. Blair (2005) 36 Cal.4th
686, 756.) In this case, defendant seeks review of the validity of the search
warrant, which was supported by an affidavit that is now missing. The absence of
an affidavit to support an executed search warrant, however, does not invalidate
the warrant when “other evidence may be presented to establish the fact that an
affidavit was presented, as well as its contents.” (U.S. v. Lambert (11th Cir. 1989)
887 F.2d 1568, 1571-1572; accord, U.S. v. Gibbs (5th Cir. 2005) 421 F.3d 352,
356 [quoting Lambert]; U.S. v. Towne (9th Cir. 1993) 997 F.2d 537, 543 [same];
U.S. v. Campbell (E.D.Mich. 2007) 525 F.Supp.2d 891, 907 [same]; see generally
17
State v. Raflik (Wis. 2001) 636 N.W.2d 690, 697 [“most federal courts have not
seen fit to suppress evidence because of a failure to record some or all of the
warrant application”].) “ ‘The rule that emerges is that reversal is indicated only
where critical evidence or a substantial part of a [record] is irretrievably lost or
destroyed, and there is no alternative way to provide an adequate record so that the
appellate court may pass upon the question sought to be raised.’ ” (People v.
Curry (1985) 165 Cal.App.3d 349, 354; see also People v. Holloway (1990) 50
Cal.3d 1098, 1116, disapproved on other grounds, People v. Stansbury (1995) 9
Cal.4th 824, 830, fn. 1.)
The superior court here determined that the record was adequate. We
review the superior court’s findings regarding the reconstruction of the original
search warrant affidavit, which are essentially factual, under a deferential
substantial evidence standard. We then independently determine whether the
record, as reconstructed and settled by the trial court, is adequate to allow the
appeal to proceed meaningfully. (People v. Osband (1996) 13 Cal.4th 622, 662;
People v. Clark (1993) 5 Cal.4th 950, 1011 [“This court has repeatedly recognized
that settlement of the record is primarily a question of fact to be resolved by the
trial court”].)
On April 12, 2005, the superior court found that the five-page unsigned
document the Court of Appeal had obtained from the Orange County District
Attorney’s Office was the same in content as the search warrant affidavit it had
reviewed on June 29, 2004. The superior court’s own recollection constitutes
substantial evidence that the content of the two documents was the same. (People
v. Mooc, supra, 26 Cal.4th at p. 1231; accord, State v. Raflik, supra, 636 N.W.2d
at pp. 699, 701.)
Defendant does not challenge the superior court’s finding that the five-page
document it reviewed on April 12, 2005, was the same as the affidavit it had
18
reviewed on June 29, 2004, when it denied his motion to suppress. He argues
instead that the record is inadequate because the critical issue is what document
the magistrate reviewed before issuing the search warrant, and the magistrate has
no recollection of reviewing or signing this search warrant and would be unable to
say whether the affidavit the superior court reviewed on April 12, 2005, is the
same in substance as the one he reviewed on August 9, 2001.
Detective Hankins, however, did have such a recollection. According to
the parties’ stipulation, Hankins would have testified that the sealed affidavit the
superior court reviewed on June 29, 2004, was “the exact sealed portion of the
affidavit from the time in 2001,” that the affidavit had been stored at the Buena
Park Police Department in the interim, and that “[i]t has not been altered or
changed in any way.” Hankins’s testimony, which was credited by the superior
court, provides substantial evidence that the sealed affidavit was the same affidavit
presented to the magistrate in support of the warrant. (See People v. Hawthorne
(1992) 4 Cal.4th 43, 64 [“Because defense counsel were not present during
relevant events, their failure to contribute to the settled statement is both
understandable and without significance to its reliability”]; accord, U.S. v. Gibbs,
supra, 421 F.3d at p. 359 [relying on the testimony of a sheriff’s deputy that at
least one drug buy was included in the search warrant affidavit, now missing, that
was submitted to the issuing judge]; U.S. v. Towne, supra, 997 F.2d at p. 539
[relying on police officer’s testimony that an attachment to a pleading was
identical to the search warrant’s missing attachment]; Nutt v. State
(Md.Ct.Spec.App. 1973) 299 A.2d 468, 470 [relying on officer’s testimony that
copy of search warrant affidavit was identical to the missing original].) Indeed,
“there is no reason to think that extrinsic evidence cannot be considered to
establish the circumstances under which a warrant was issued and the nature of the
documents relied upon in authorizing a search, insofar as such matters are deemed
19
relevant to the constitutional inquiry.” (U.S. v. Towne, supra, 997 F.2d at p. 542;
accord, People v. Wright (1990) 52 Cal.3d 367, 391-393 [relying on extrinsic
evidence to establish the contents of an affidavit where the original affidavit in
support of the arrest warrant had been destroyed by the clerk’s office]; cf. U.S. v.
Pratt (11th Cir. 2006) 438 F.3d 1264, 1266 [“We hold that the Fourth Amendment
does not prohibit the use of other evidence to establish the existence and the
contents of a lost search warrant”].)
In concluding that the record was insufficient to enable meaningful
appellate review, the Court of Appeal did not directly confront the basis for the
superior court’s finding that the sealed affidavit it reviewed on June 29, 2004, was
the same affidavit the magistrate had reviewed prior to issuing the warrant, nor did
it challenge the basis for the superior court’s finding that the five-page document
was the same in content as the sealed affidavit the superior court had reviewed on
June 29, 2004. Indeed, the Court of Appeal did not even identify what standard of
review it was applying before arriving at its conclusion that “there is good cause to
doubt the authenticity of the confidential attachment in the appellate record.” The
Court of Appeal focused instead on its finding that “at every procedural juncture
the trial court’s handling of the warrant affidavit invited error and confusion,”
from the moment Hankins was allowed to retain “the crucial part of the warrant
affidavit,” to the superior court’s failure initially to review the affidavit in camera
prior to ruling on defendant’s motions, and finally to the superior court’s
“subsequent and belated review, which yielded an entirely new page to add to [the
sealed materials].” Although the decision to allow the police to retain custody of
the original sealed search warrant affidavit was error (as we have discussed
above), and although the superior court’s failure to review the sealed warrant
affidavit at the initial hearing on defendant’s motions challenging the warrant was
error as well (see People v. Galland, supra, 116 Cal.App.4th at pp. 492-494) and
20
the police department’s subsequent destruction of the sealed warrant affidavit was
surely regrettable, the question on appeal is whether the reconstructed record is
nonetheless sufficient to permit appellate review of the warrant. The superior
court found that the reconstructed record—i.e., the unsigned five-page
document—was identical in substance to the lost affidavit, and that finding is
supported by substantial evidence. (People v. Barnard (1982) 138 Cal.App.3d
400, 409.)2
We share the Court of Appeal’s concern over the superior court’s discovery
at the April 12, 2005, hearing of “ ‘another piece of paper that was in another
sealed envelope,’ ” that has relevance to the determination of probable cause, and
that “had been inadvertently omitted from the superior court file” but whose origin
was unknown, but the failure to identify this additional document appears to be
directly attributable to the very limited remand ordered by the Court of Appeal
itself. When the Court of Appeal realized that the sealed warrant affidavit was
missing from the record, the proper procedure would have been to remand the case
to the superior court with directions to hold a hearing to reconstruct or settle the
record as to the missing search warrant affidavit and augment the record
accordingly. (See People v. Mooc, supra, 26 Cal.4th at p. 1231; People v.
2
The Court of Appeal also intimated that the passage of time had rendered
the reconstruction of the record “too far attenuated from the magistrate’s
determination of probable cause to serve as a legitimate basis for any decision on
the warrant’s validity.” But, as we have previously held, “[t]ime alone . . . is not
the dispositive consideration in evaluating whether a reconstructed record affords
meaningful appellate review. The nature of the issue, the amount of the record
reconstructed, and the means available to assist the process are all important in
determining the reliability of any substitute for a contemporaneous verbatim
account.” (People v. Hawthorne, supra, 4 Cal.4th at p. 64.) The current record
does not compel a finding that the passage of time has rendered reconstruction of
the affidavit or other record-settlement procedures impossible.
21
Martinez, supra, 132 Cal.App.4th at p. 239; see also People v. Osband, supra, 13
Cal.4th at p. 661.) The Court of Appeal did order a remand, but only for a very
narrow purpose: “to review the [five-page document] to determine if it is the same
affidavit reviewed by the court on June 29, 2004. If the superior court determines
the sealed document is the same affidavit it reviewed on June 29, 2004, the
superior court is ordered to augment the record and prepare a supplemental Clerk’s
Transcript to include the sealed affidavit.” Thus, the reason the superior court did
not identify the significance or provenance of the additional piece of paper in a
separate sealed envelope is that the Court of Appeal never instructed the superior
court to do so.
We are concerned as well that the Court of Appeal provided no notice to
the parties of its remand to the superior court or of its receipt of the augmented
record, nor did it otherwise afford the parties an opportunity to participate in the
record settlement process. (See Cal. Rules of Court, rules 8.155(d), 8.340(c).)
However, we need not decide the precise effect of the failure to provide notice to
the parties of the record-settlement process or the precise effect of the discovery of
the unidentified additional piece of paper described above for it appears that,
subsequent to the issuance of the Court of Appeal’s opinion, the superior court
was able to locate the filed copy of the sealed search warrant affidavit in the
clerk’s office. It therefore seems most prudent to remand the matter to enable the
superior court to conduct a full hearing to reconstruct or settle the record as to the
missing original sealed search warrant affidavit. At that hearing, the superior
court may consider all relevant matters, including the filed copy of the sealed
affidavit as well as the five-page document and the additional piece of paper the
superior court viewed at the prior hearing, and, if necessary, inquire into the
circumstances under which the original affidavit was purged. The present
22
circumstances, however, do not justify a finding that defendant’s right to
meaningful appellate review has been irrevocably compromised.
DISPOSITION
The judgment of the Court of Appeal is reversed and the matter is
remanded for proceedings consistent with this opinion.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
23
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Galland
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 146 Cal.App.4th 277
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S149890Date Filed: December 29, 2008
__________________________________________________________________________________
Court:
SuperiorCounty: Orange
Judge: Robert R. Fitzgerald*
__________________________________________________________________________________
Attorneys for Appellant:
Jackie Menaster, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Holley A. Hoffman,
Maxine P. Cutler, Stephen T. Oetting, Gil Gonzalez and Lynne G. McGinnis, Deputy Attorneys General,
for Plaintiff and Respondent.
*Retired judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Jackie Menaster
2658 Griffith Park Boulevard, #503
Los Angeles, CA 90039-2520
(323) 644-0952
Lynne G. McGinnis
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2205
Petition for review after the Court of Appeal reversed and remanded a judgment of conviction of criminal offenses. This case includes the following issues: (1) Must confidential information in a sealed search warrant affidavit, which was reviewed by the trial court pursuant to People v. Hobbs (1994) 7 Cal.4th 948, be retained by the court rather than law enforcement in order to provide an adequate record for appeal? (2) Did the Court of Appeal properly invoke the exclusionary rule and suppress evidence obtained in execution of the search warrant as a sanction for the trial court's failure to retain the sealed affidavit although there was no evidence of police misconduct in obtaining or executing the warrant?
| Date: | Citation: | Docket Number: | Category: | Status: |
| Mon, 12/29/2008 | 45 Cal. 4th 354, 197 P.3d 736, 86 Cal. Rptr. 3d 841 | S149890 | Review - Criminal Appeal | closed; remittitur issued |
| 1 | Galland, Anthony Andrew (Defendant and Appellant) P.O.Box 290066 Represa, CA 95671 Represented by Jackie Menaster Attorney at Law 2658 Griffith Park Boulevard, Suite 503 Los Angeles, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Lynne G. Mcginnis Office of the Attorney General 110 West "A" Street, Suite 1100 P.O. Box 85266 San Diego, CA |
| Disposition | |
| Dec 29 2008 | Opinion: Reversed |
| Dockets | |
| Jan 29 2007 | Request for depublication filed (initial case event) Respondent, The People Deputy Attorney General, Lynne G. McGinnis. |
| Jan 31 2007 | Petition for review filed Respondent, the People by Deputy Attorney General, Lynne G. McGinnis. |
| Jan 31 2007 | Record requested |
| Feb 2 2007 | Received Court of Appeal record one file folder/briefs/transcript |
| Feb 9 2007 | Answer to petition for review filed Appellant, Anthony Andrew Galland Attorney, Jackie Menaster |
| Feb 28 2007 | Request for judicial notice received (pre-grant) counsel for respondent (People) |
| Mar 22 2007 | Time extended to grant or deny review The time for granting or denying review in the above-entitled matter is hereby extended to and including May 1, 2007, or the date upon which review is either granted or denied. |
| Apr 5 2007 | Record requested G031342 *** Overnight Mail *** |
| Apr 9 2007 | Received Court of Appeal record G031342-file jacket/briefs/transcripts |
| Apr 18 2007 | Petition for review granted (criminal case) The request for judicial notice filed Febraury 28, 2007, is granted. George, C.J., was absent and did not participate. Votes: Moreno, ACJ., Kennard, Baxter, Werdegar, Chin and Corrigan, JJ. |
| May 10 2007 | Request for extension of time filed Counsel for respondent requests extension of time to June 20, 2007, to file the opening brief on the merits. |
| May 10 2007 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Jackie Menaster is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
| May 17 2007 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including June 20, 2007. |
| May 23 2007 | Application to file over-length brief filed counsel for respondent (People) |
| May 23 2007 | Received: from counsel for resp. over-sized brief on the merits. |
| May 23 2007 | Request for judicial notice filed (granted case) counsel for respondent. |
| Jun 1 2007 | Opening brief on the merits filed counsel for respondent - w/ permission |
| Jun 1 2007 | Order filed On application of respondent and good cause appearing, permission to file the oversized brief on the merits is hereby granted. |
| Jun 29 2007 | Request for extension of time filed answer brief/merits to 8-1-07 Appellant Anthony Andrew Galland Attorney Jackie Menaster, Court of Appeal appt. |
| Jul 6 2007 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including August 1, 2007. |
| Jul 25 2007 | Answer brief on the merits filed Anthony Andrew Galland, Appellant Attorney Jackie Menaster |
| Jul 25 2007 | Motion filed (non-AA) Anthony Andrew Galland, Appellant Attorney Jackie Menaster ("to unseal search warant affidavit") |
| Jul 31 2007 | Opposition filed counsel for resp. to Motion to Unseal Search Warrant Affidavit. |
| Aug 7 2007 | Reply brief filed (case fully briefed) counsel or respondent |
| Aug 16 2007 | Filed: counsel for aplt. Anthony Galland, Reply to Opposition to Motion to Unseal Search Warrant Affidavit (w/permission) |
| Sep 12 2007 | Motion to unseal record denied Appellant's motion to unseal the search warrant affidvit, filed on July 25, 2007, is denied. |
| Aug 18 2008 | 2nd record request 2 sealed envelopes from superior court, transcripts. *** Overnight Mail *** |
| Aug 19 2008 | Received Court of Appeal record briefs/envelopes |
| Oct 22 2008 | Case ordered on calendar to be argued on Wednesday, December 3, 2008, at 9:00 a.m., in Los Angeles. |
| Oct 23 2008 | Filed: counsel for respondent Supplemental Citation for Oral Argument 12-3-08 |
| Oct 23 2008 | Request for judicial notice filed (granted case) counsel for respondent (People) (3rd Motion)) |
| Nov 7 2008 | Request for judicial notice filed (granted case) counsel for aplt. |
| Nov 19 2008 | Request for judicial notice granted The People's requests for judicial notice, filed May 23, 2007, June 1, 2007, August 7, 2007, and October 23, 2008, are granted. Defendant's requests for judicial notice, filed July 25, 2007, and November 7, 2008, are denied. |
| Dec 3 2008 | Cause argued and submitted |
| Dec 26 2008 | Notice of forthcoming opinion posted |
| Dec 29 2008 | Opinion filed: Judgment reversed The matter is remanded for proceedings consistent with this opinion. OPINION BY: Baxter, J. ---- joined by: George, C.J., Kennard, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Jan 12 2009 | Rehearing petition filed counsel for respondent (People) |
| Jan 15 2009 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including March 27, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Feb 11 2009 | Rehearing denied Werdegar, J., was absent and did not participate. |
| Feb 11 2009 | Remittitur issued (criminal case) |
| Feb 19 2009 | Received: receipt for remittitur from CA 4/3 |
| Feb 25 2009 | Note: records returned to CA 4/3 (2 doghouses, 1 confidential doghouse) |
| May 4 2009 | Counsel fee request received Atty Menaster |
| May 21 2009 | Compensation awarded counsel George, C.J., was absent and did not participate. Atty Menaster |
| Briefs | |
| Jun 1 2007 | Opening brief on the merits filed |
| Jul 25 2007 | Answer brief on the merits filed |
| Aug 7 2007 | Reply brief filed (case fully briefed) |
| Jan 9, 2009 Annotated by admin.ah | Written by: Alex Bean Summary of Opinion Background Appellate Court Holding Reviewed Supreme Court Holding Key Points of Law Disclosure of an informant’s identity is not required to establish the legality of a search pursuant to warrant. (Cal Evid. Code Sec. 1402). If the disclosure of the contents of an informant’s statement would tend to disclose the identity of the informant, the communication should be privileged. (People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). Where a portion of an affidavit supporting a search warrant has been sealed, the relevant materials are to be made available for in camera review by the trial court to determine (1) sufficient grounds for sealing an affidavit and (2) whether an affidavit supports reasonable cause. The prosecutor may be present at the hearing, but defense council is to be excluded unless the prosecutor waives any objection. Confidential law enforcement records reviewed in camera may be retained by the custodian of those records instead of by the court, provided the court makes an adequate record of what was reviewed. (People v. Mooc (2001) 26 Cal. 4th 1216, 1228-1230). To determine whether the law permits a sealed search warrant affidavit to be retained in the custody of an entity other than the court, a court must balance the public’s interest in preventing disclosure of confidential information against the defendant’s interest in maintaining the integrity of the record and maintaining it for further judicial review. In the absence of a particularized showing, a court should presume that the court clerk’s office can safeguard sealed documents in its possession. (Cal Evid. Code 664). A sealed search warrant affidavit may be retained by an entity other than the court upon a showing that (1) disclosure of information would impair further investigation or endanger safety of a confidential informant; (2) that security procedures at the court clerk’s office governing a sealed search warrant are inadequate to protect against unauthorized disclosure; (3) that security procedures at the other entity are sufficient to guard against unauthorized disclosure; (4) that the other entity has procedures to ensure that the affidavit is retained for 10 years after the final disposition of noncapital case, permanently in a capital case, or until further order of the court; (5) that the magistrate has made a sufficient record of the documents that were reviewed in order to permit identification of the original sealed affidavit in future proceedings, or to permit reconstruction of the affidavit. The absence of an affidavit to support an executed search warrant does not preclude meaningful appellate review when other evidence may be presented to establish the existence and contents of an affidavit. (U.S. v. Lambert (11th Cir. 1989) 887 F.2d 1568,1571-1572; accord, U.S. v. Gibbs (5th Cir. 2005) 421 F.3d 352, 356 [quoting Lambert]; U.S. v. Towne (9th Cir. 1993) 997 F.2d 537, 543 Reconstruction of an original search warrant sufficient to support meaningful appellate review is essentially a matter of fact and should be reviewed under a deferential substantial evidence standard. (People v. Osband (1996) 13 Cal.4th 622, 662; People v. Clark (1993) 5 Cal.4th 950, 1011 Student Issue Analysis The first important point of law in this case provides a detailed balancing test to be used by trial courts in determining when a document containing sensitive information that forms part of the court record may be stored somewhere other than court facilities. The test seeks to balance the interests of the defendant and the integrity of the record, with the needs of the informant. It places the burden on the prosecution to show that the court clerk is not capable of safeguarding the records. In doing so, it seeks to maintain documents with a court clerk whenever possible, while recognizing the importance of protecting confidential informants and other sensitive information. The second important point of law is that the absence of an affidavit used to support a search warrant does not defeat the possibility of meaningful appellate review. The Supreme Court adopts the opinion of several federal circuit courts in finding that if the contents and existence of the affidavit may be established another way by the trial court, the appellate review may proceed. They further find that the reconstruction of the record, just like construction of the record is primarily a matter of fact – for the trial court to decide. In ruling this way and remanding to the trial court, the Supreme Court in all likelihood allows the trial court to deny the defendant’s motion to quash the search warrant – upholding his conviction. Issue in Perspective For perspective on the use of confidential informants in law enforcement, see John Madinger, CONFIDENTIAL INFORMANT: LAW ENFORCEMENT’S MOST VALUABLE TOOL (2000, CRC Press). |
