(Super. Ct. No. 09F01745)
The opinion of the court was delivered by: Raye , P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Sherri Lynn Way entered a plea of no contest to possession of methamphetamine while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)) and was sentenced to state prison for the upper term of four years. On appeal, she contends the trial court erred in denying her motion to suppress evidence. She claims her motion to quash and to traverse the search warrant should have been granted for lack of probable cause because the warrant relied entirely upon information from a confidential informant (CI) or on uncorroborated information from an untested informant and the officers executing the warrant could not in good faith rely on it. We will affirm the judgment.
Probable cause for the issuance of a search warrant was based upon the affidavit of Sacramento County Sheriff's Detective Salvador Robles, Jr. In the public portion of his affidavit, Detective Robles set forth his extensive training and experience and knowledge gained about narcotic traffickers, and referred the magistrate to the sealed portion of the affidavit (Exhibit A) for details and facts establishing probable cause. Detective Robles requested an order sealing Exhibit A to implement the privilege under Evidence Code sections 1040 to 1042 and to protect the identity of "any confidential informant(s) and/or official information" pursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). Judge Gary Ransom ordered Exhibit A sealed and issued the warrant on February 26, 2009.
On March 3, 2009, pursuant to the search warrant for defendant, defendant's residence, and her vehicles, California Multijurisdictional Methamphetamine Enforcement Team officers went to 5305 Marbury Way in Antelope. The officers entered the residence and arrested defendant and her adult son, Larry Way. Another female was present as was defendant's seven-month-old grandchild, who was taken into protective custody. The officers searched the residence and, in defendant's bedroom, found a loaded handgun on the floor, six bullets, smoking pipes, a scale, a straw with methamphetamine residue, and a total of 2.37 grams of methamphetamine in several types of packaging in different areas of the room.
An amended consolidated information charged defendant with possession of methamphetamine for sale, possession of a firearm by a convicted felon, possession of methamphetamine while armed with a loaded firearm, and possession of ammunition by a convicted felon. In connection with the possession for sale offense, an arming enhancement was alleged. Two prior felony drug convictions were also alleged.
Defendant filed a motion to traverse and quash the search warrant, and to suppress evidence seized pursuant to the warrant or to disclose the CI and unseal Exhibit A. Defendant argued the affidavit failed to establish probable cause, included material omissions and a misstatement of fact, and the CI's information was conclusionary, not factual. Specifically, defendant stated, "A review of the police reports in the instant case suggests that the information provided by the informant is made up primarily of conclusions, not facts. Since defense counsel is unable to view any portion of the affidavit, it is up to the court to satisfy itself that facts, not conclusions, support the warrant."
At the suppression hearing, Judge Ronald Tochterman stated that he had reviewed and considered the entire affidavit, including the sealed exhibit. The court denied the motion to quash and traverse the warrant and to suppress the evidence, finding there was no reason to believe that any material information had been omitted from the affidavit or that there were any material misrepresentations in the affidavit. The court further found that there was probable cause for issuance of the warrant. The court denied the motion to disclose any part of the sealed portion of the affidavit, finding that to do so would identify the CI.
Hobbs, supra, 7 Cal.4th 948 considered "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." (Id. at p. 955.) Hobbs recognized "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." (Id. at p. 957.) "[T]he sealing of the majority or entirety of the search warrant affidavit '"leaves the defendant without an adversary before the court who can not only ascertain that the appropriate challenges are considered but also that the defense argument is vigorously and effectively pursued."' [Citation.]" (Id. at p. 964.) But a law enforcement officer has a statutory privilege to refuse to disclose, and to prevent another from disclosing, the identity of a CI. (Evid. Code, § 1041, subd. (a).) Hobbs held that "the informant's privilege (§ 1041), the long-standing rule extending coverage of that privilege to information furnished by the informant which, if disclosed, might reveal his or her identity, and the codified rule that disclosure of an informant's identity is not required to establish the legality of a search pursuant to a warrant valid on its face (§ 1042, subd. (b)) compel a conclusion that all or any part of a search warrant affidavit may be sealed if necessary to implement the privilege and protect the identity of a confidential informant. Section 915, subdivision (b), expressly authorizes lower courts to utilize an in camera review and discovery procedure to effectuate implementation of the privilege." (Hobbs, at p. 971.)
Hobbs instructed that in evaluating a motion to traverse or quash a warrant, the trial court should conduct an in camera hearing pursuant to Evidence Code section 915, subdivision (b) and People v. Luttenberger (1990) 50 Cal.3d 1, 20-24 (Luttenberger), "in order to strike a fair balance between the People's right to assert the informant's privilege and the defendant's discovery rights." (Hobbs, supra, 7 Cal.4th at p. 972.) The trial court must first determine "whether the affidavit is properly sealed, i.e., whether valid grounds exist for maintaining the informant's confidentiality, and whether the extent of the sealing is justified as necessary to avoid revealing his or her identity." (Id. at p. 973.) Where all or a portion of the affidavit has been sealed to protect the CI's identity and the defendant has made a motion to traverse the warrant, "the court should treat the matter as if the defendant has made the requisite preliminary showing required under this court's holding in Luttenberger." (Hobbs, at p. 972, fn. 6.)
At the in camera hearing, the prosecutor may be present but defense counsel and defendant are excluded unless the prosecutor waives any objection. Defense counsel should be given an opportunity to submit written questions to be asked by the trial court of any ...