Orange County Super. Ct. No. 01CF2350, Ct.App. 4/3 G034189. Judge: Robert R. Fitzgerald.*fn1
The opinion of the court was delivered by: Baxter, J.
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 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 non-capital 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. 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.
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.
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, 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 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 ...