PEOPLE v. HOBBS

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Court of Appeal, Third District, California.

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

3 Crim. C006228.

Decided: September 30, 1991

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.

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 by way of a section 1538.5 motion.   Accordingly, they should not be heard to object on appeal.  [Citations.]”  (Id. at p. 1285, 269 Cal.Rptr. 313.)

 Here, the predicate for the holdings in Castro and Duval is missing.   Defendant tendered a motion to disclose that did not have the issue of her guilt or innocence as its focus.6  Independent of her motion to disclose the identity of the informant who she contended was a material witness regarding her guilt or innocence, defendant sought access to the material facts relied on by the prosecution to establish probable cause in order to challenge the finding of probable cause and to traverse the warrant by attacking the veracity of the facts relied on by the prosecution to establish probable cause to search.

The Attorney General seeks to distinguish Seibel by noting that in Seibel the request for access to the sealed documents was incorporated as part of defendant's motion to suppress, while here defendant filed a separate pleading requesting access to Exhibit C.   In Seibel the prosecution did not object to such inclusion while here, the Attorney General contends, the prosecution had no such duty since the request was in a discreet document separate and apart from the motion to suppress.

Our determination that the appeal is properly before us does not turn on the fact defendant's request for access to Exhibit C was initially made in a separate document from her motion to suppress and traverse.   Consistent with the holding in Seibel, our review of the record convinces us 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 severalhearings held to resolve her challenges to the warrant, defendant, the court, and the prosecutor treated her request for access to Exhibit C as an integral part of her motions to quash and traverse the warrant.

Since defendant was denied access to the very information the prosecution relied on to establish probable cause, she tendered the only arguments she could.   Defendant argued that in order to challenge the finding of probable cause and the veracity of the information relied on by the prosecution, she was entitled to see it.   Failing that, defendant argued that the court was limited to the information in the public portion of the search warrant affidavit in determining whether there was probable cause to search her residence.   At no time did the prosecutor object to this approach taken by the defendant.   Accordingly, we reject the Attorney General's objection on appeal.  (People v. Seibel, supra, 219 Cal.App.3d at p. 1285, 269 Cal.Rptr. 313;  People v. Martin (1969) 2 Cal.App.3d 121 at pp. 125–126, 82 Cal.Rptr. 414;  4 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Exclusion of Illegally Obtained Evidence, § 2250, p. 2645.)

2. Due Process

The Fourth Amendment provides that “a warrant may not issue except on probable cause supported by oath or affirmation.”  California Constitution, article I, section 13, contains a substantially identical guarantee.7  Penal Code section 1525 codifies this constitutional requirement.8

 Although the Fourth Amendment restricts only the federal Government, the right thus guaranteed is one of the fundamental rights protected against state action by the Fourteenth Amendment and is enforceable on the states through the operation of the exclusionary rule.   (Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.)   Evidence seized under a warrant not based on a sufficient showing of probable cause must be suppressed.  (Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, overruled on other grounds, Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548.)   In addition to being able to challenge the magistrate's finding of probable cause, a defendant is entitled to challenge the accuracy and truthfulness of statements made in support of a warrant application once she makes a substantial preliminary showing of deliberate falsehood or reckless disregard for the truth.   (franks v. delaware (1978) 438 U.S. 154 at pp. 168–172, 98 S.ct. 2674 at pp. 2682–2685, 57 L.Ed.2d 667.)

 The Due Process Clause of the Fourteenth Amendment guarantees criminal defendants a meaningful opportunity to present a complete defense.   (Crane v. Kentucky (1986) 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636, 645;  California v. Trombetta (1984) 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413, 419.)   An essential component of procedural fairness under the Due Process Clause is an opportunity to be heard.  (Crane v. Kentucky, supra, 476 U.S. at p. 690, 106 S.Ct. at p. 2146;  In re Oliver (1948) 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682;  Grannis v. Ordean (1914) 234 U.S. 385, 394, 34 S.Ct. 779–783, 58 L.Ed. 1363.)   That opportunity would be an empty one if the prosecution were permitted to use evidence seized pursuant to a warrant while keeping secret the facts relied on by the prosecution to establish probable cause to search.   Such a procedure deprives a defendant of the basic right to have the prosecutor's case encounter and “survive the crucible of meaningful adversarial testing.”  (Crane v. Kentucky, supra, 476 U.S. at p. 690, 106 S.Ct. at p. 2147, quoting from United States v. Cronic (1984) 466 U.S. 648, 656, 104 S.Ct. 2039, 2045, 80 L.Ed.2d 657.)

Here the instant challenge to the search warrant was to the magistrate's finding of probable cause and to the accuracy and truthfulness of the facts relied on by the prosecution to establish probable cause.   Defendant was denied all access to the material facts the prosecution was relying on to establish probable cause.   The in camera hearing and review conducted outside defendant's presence in which the trial judge attempted to conjure up various legal and factual challenges to the sealed affidavit will not suffice.   Such a procedure “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.”  (Swanson v. Superior Court, (1989) 211 Cal.App.3d 332, 339, 259 Cal.Rptr. 260.)

The United States Supreme Court rejected this approach in Franks v. Delaware, supra, 438 U.S. at p. 166, 98 S.Ct. at pp. 2681–2682, wherethe State argued no evidentiary hearing concerning a defendant's allegations of misrepresentations in an affidavit was necessary because a magistrate had already reviewed that document.   The Supreme Court rejected this contention, stating “[t]he usual reliance of our legal system on adversary proceedings itself should be an indication that an ex parte inquiry is likely to be less vigorous.   The magistrate has no acquaintance with the information that may contradict the good faith and reasonable basis of the affiant's allegations.”   (Id. at p. 169, 98 S.Ct. at p. 2683.)

By keeping secret from the defendant the very facts the prosecution relied on to establish probable cause, the trial court has left defendant with the legal equivalent of the question:  “Is it larger than a bread box?”  (Steve Allen, Favorite question for guests on the panel show What's My Line CBS TV, 1950–1967.)   Defendant has no way of presenting a rational challenge to the magistrate's finding of probable cause or to the veracity of the facts relied on by the prosecution to establish probable cause when she is denied access to the very information she is supposed to rebut.

The protection against unlawful searches of one's home guaranteed by the Fourth Amendment is dependent on procedures that afford a defendant a fair opportunity to challenge the magistrate's finding of probable cause to search, and afford a fair opportunity to attack the veracity of the facts relied on by the prosecution to establish probable cause to search.   Here defendant was wrongly denied such a opportunity in contravention of the Due Process Clause of the Fourteenth Amendment.

3. Privilege Not to Disclose An Informant's Identity

 The prosecution's reliance on section 1042, subdivision (b), is misplaced.9  Properly construed with article I, section 13 and Penal Code section 1538.5, subdivision (a)(2), section 1042, subdivision (b) must be read so as not to prevent the disclosure of the material facts the prosecution relies on to establish probable cause to search.   To do otherwise would nullify the hearing procedure provided for in Penal Code section 1538.5.

Section 1538.5, subdivision (a)(2), provides in relevant part:  “A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds:  (2) The search or seizure with a warrant was unreasonable because ․ (iii) there was not probable cause for the issuance of the warrant;  ․ (v) there was any other violation of federal or state constitutional standards.”   As we have noted earlier, the protectionsguaranteed by the Fourth Amendment are dependent on procedures that afford a defendant a fair opportunity to assert such rights.  Penal Code section 1538.5 provides such an opportunity.   Construing the statutes to achieve harmony (Wemyss v. Superior Court (1952) 38 Cal.2d 616, 621, 241 P.2d 525;   People v. Sanchez, supra, 24 Cal.App.3d at p. 678, 101 Cal.Rptr. 193), we hold that section 1042, subdivision (b), does not permit the prosecution to keep secret from defendant during a Penal Code section 1538.5 hearing the material facts relied on by the prosecution to establish probable cause to search, without suffering an adverse order.  (See § 1042, subd. (a).)

This view is supported by an examination of the legislative history of section 1042.   The section was enacted in 1965 as part of the first comprehensive revision and restatement of the law of evidence in California since 1872.   The Law Revision Commission's comment regarding subdivision (a) provides in part that “[t]his subdivision recognizes the existing California rule in a criminal case.   As was stated by the United States Supreme Court in United States v. Reynolds, 345 U.S. 1, 12, 73 S.Ct. 528, 534, 97 L.Ed. 727 (1953), ‘since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense.’ ”  (7 Cal.Law Revision Com.Rep. (December 1965) p. 205.)

The Law Revision Commission's comment regarding subdivision (b) provides:  “This subdivision codifies the rule declared in People v. Keener, 55 Cal.2d 714, 723, 12 Cal.Rptr. 859, 864, 361 P.2d 587, 592 (1961), in which the court held that ‘where a search is made pursuant to a warrant valid on its face, the prosecution is not required to reveal the identity of the informer in order to establish the legality of the search and the admissibility of the evidence obtained as a result of it.’   Subdivision (b), however, applies to all official information, not merely to the identity of an informer.”  (7 Cal.Law Revision Com.Rep. (December 1965) p. 205.)   The comment of the Assembly Committee on Judiciary restates the comments of the Law Revision Commission and then goes on to add:  “Subdivision (b) does not affect the rule that a defendant is entitled to know the identity of an informer in a case where the informer is a material witness with respect to facts directly relating to the defendant's guilt.”  (See legis. committee com., West's Ann.Evid.Code (1966 ed.) § 1042, p. 650.)

In People v. Keener, supra, 55 Cal.2d 714, 12 Cal.Rptr. 859, 361 P.2d 587, the affidavit was attached to and made a part of the search warrant.   Without identifying two informants, the affidavit set forth the material facts the prosecution relied on to establish probable cause.   These facts included statements by the two informants that a bookmaking operation was operating at the location to be searched, a description of various stolen items located there, and statements recounting a sale of stolen property which took place there.  (Id. at p. 717, 12 Cal.Rptr. 859, 361 P.2d 587.)   The Supreme Court framed the issues presented to them as “whether the withholding of the identity of the informant under the circumstances involved here rendered inadmissible the evidence found as a result of the search.”  (Id. at p. 720, 12 Cal.Rptr. 859, 361 P.2d 587.)

The Court held “that where a search is made pursuant to a warrant valid on its face, the prosecution is not required to reveal the identity of the informer in order to establish the legality of the search and the admissibility of the evidence obtained as a result of it.”  (Id. at p. 723, 12 Cal.Rptr. 859, 361 P.2d 587.)   It was this language the Legislature paraphrased when it drafted and enacted section 1042, subsection (b).10  A careful reading of Keener convinces us that the Court was including the material facts in the affidavit relied on to establish probable cause when it used the phrase “a warrant valid on its face.”

The Supreme Court stated:  “It is important to keep in mind that the warrant met all the statutory requirements.   For example, the warrant and its supporting affidavit, considered together, named the assertedly guilty persons, particularly described the place to be searched and the property to be seized, and set forth facts tending to establish probable cause for believing that the property to be seized was being used as the means of committing a felony.   The fact that the affidavit, which was made a part of the warrant, showed that reliance was placed upon information from an unnamed informant does not lead to a contrary conclusion.” 11  (Id. at p. 721, 12 Cal.Rptr. 859, 361 P.2d 587.)   No language in the opinion suggests that the court would have reached the same result if not only had the mere identity of the informant been withheld, but also, as is the case here, all of the material facts relied on to establish probable cause.   That the material facts establishing probable cause were independent of the identity of the informant was a central consideration in the court's analysis.

In Swanson v. Superior Court, supra, 211 Cal.App.3d 332, 259 Cal.Rptr. 260, the warrant affidavits were not attached to the warrants.   The defendants moved to suppress evidence and to dismiss the charges against them because the affidavits had been sealed in their entirety under the confidential informant privilege of section 1041.   The trial court examined the affidavits in camera and denied the defendant's motions.   The reviewing court concluded “that the only portion of an affidavit that may be concealed from the defendant is that portion which necessarily would reveal the identity of a confidential informant.   When the affidavit is in the form of a transcript which does not lend itself to a partial sealing, the problem can be solved by the addition of a written affidavit narrating those facts upon which probable cause is based that do not reveal the identity of the informant.”  (Id. at p. 339, 259 Cal.Rptr. 260.)

The Attorney General argues this language supports the proposition that affidavits may be entirely sealed if the information contained therein would disclose the identity of a confidential informant.   This argument ignores language in the opinion to the contrary.   In finding that the holding in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 had no application to the question before it, the court stated that “[t]he problem with sealing the entire affidavit is one of due process.   It prevents the defendant from being able to attack the warrant with the assistance of counsel.   A defendant has a Fourth Amendment right to be free from unreasonable searches and seizures and a Sixth Amendment right to be represented by counsel.   Sealing the entire affidavit prevents him from exercising these rights.”  (Swanson, supra, 211 Cal.App.3d at p. 340, 259 Cal.Rptr. 260.) 12

In People v. Greenstreet (1990) 218 Cal.App.3d 1516, 267 Cal.Rptr. 377 the trial court redacted and sealed all parts of a search warrant affidavit that disclosed the identity of a confidential informant and gave defendant access to the remaining information.   It was the sealed information that established probable cause to search.   Relying on the literal language of section 1042, subdivision (b), and the holding in People v. Flannery (1985) 164 Cal.App.3d 1112, 1118–1120, 210 Cal.Rptr. 899, the reviewing court held that it was proper to withhold from the defendant the facts in the affidavit establishing probable cause to search without being compelled to issue a suppression order.   (People v. Greenstreet, supra, 218 Cal.App.3d at pp. 1518–1520, 267 Cal.Rptr. 377.)

For the reasons we have previously stated in this opinion we disagree with the holding in Greenstreet construing section 1042, subdivision (b).  Moreover, Flannery cannot be read to support the proposition that the material facts relied on by the prosecution to establish probable cause can be kept secret from the defendant to safeguard the identity of a confidential informant without any adverse order being entered against the prosecution.

Flannery involved a search warrant supported by a written affidavit, a substantial portion of which was information from a confidential informant.   An attachment to the affidavit contained information regarding the reliability of the confidential informant.   This attachment was sealed and a reading of the attachment convinced the reviewing court that the disclosure of the information it contained would have disclosed the identity of the informant.   At the preliminary hearing, the defense sought to obtain the identity of the informant.   This was refused and an in camera hearing was held to determine whether the confidential informant was a material witness on the issue of guilt and whether the informant was reliable.   On appeal, the reviewing court did not agree that the issue of the reliability of the informant should have been determined in open court.   The court held that the in camera proceeding to determine the reliability of the informant was legally correct and that disclosure of the identity of the informant was proscribed by section 1042, subdivision (b).  (People v. Flannery, supra, 164 Cal.App.3d at pp. 1116–1118, 210 Cal.Rptr. 899.)   There is no suggestion in Flannery that the defendant was denied access to the material facts relied on by the prosecution to establish probable cause.   Rather, it appears that these material facts were what the court was referring to when it noted that the warrant at issue was “valid on its face.”  (Id. at pp. 1116–1118, 210 Cal.Rptr. 899.)

4. Applicability of Luttenberger

In People v. Luttenberger (1990) 50 Cal.3d 1, 265 Cal.Rptr. 690, 784 P.2d 633 the Supreme Court held that a defendant who has direct access to a complete search warrant affidavit and who can use the knowledge obtained from reading it to raise a reasonable doubt about its veracity has the right to discovery of information which may help mount an attack on that affidavit and warrant.  (Id. at pp. 6–25, 265 Cal.Rptr. 690, 784 P.2d 633.)   In Luttenberger, a warrant had been issued for the search of defendant's home, based on a police officer's affidavit setting forth the material facts the prosecution relied on to establish probable cause, including statements made by an unidentified confidential informant.  (Id. at p. 7, 265 Cal.Rptr. 690, 784 P.2d 633.)   Defendant did not contend the affidavit was facially insufficient to establish probable cause for issuing a search warrant.   Instead, he sought information to support a “sub-facial” challenge by controverting the veracity of statements made in the affidavit.  (Id. at p. 8, 265 Cal.Rptr. 690, 784 P.2d 633.)

First, the Supreme Court rejected the Attorney General's suggestion that it should impose on the discovery process the Franks standard, formulated by the United States Supreme Court for the purpose of establishing a defendant's right to an evidentiary hearing on the veracity of a search warrant affidavit.13  The court explained that one of the purposes of the Franks requirement of a substantial preliminary showing is to avoid misuse of evidentiary hearings for discovery purposes.  “But it should not be applied to preclude all meaningful opportunity for a defendant to challenge a warrant on veracity grounds.”  (People v. Luttenberger, supra, at p. 17, 265 Cal.Rptr. 690, 784 P.2d 633.)  Franks, the court pointed out, did not involve a confidential informant, and therefore the Franks decision did not address how a defendant is to gather information for a preliminary showing of material misrepresentation where there is a confidential informant.  “We do not believe that by its formulation of the preliminary showing, the Franks court intended effectively to bar challenges to warrant affidavits based on confidential informant's tips.”  (Luttenberger, supra, at p. 18, 265 Cal.Rptr. 690, 784 P.2d 633.)

The Supreme Court created a two stage procedure for a trial court to follow in addressing such discovery requests.   First the trial court should determine whether defendant is entitled to have the court examine the requested documents at an in camera hearing.  “To obtain an in camera hearing, however, the defendant must raise a substantial possibility that the allegedly untrue statements were material to the probable cause determination.”   (Luttenberger, supra, at p. 23, 265 Cal.Rptr. 690, 784 P.2d 633.)  “To justify in camera review and discovery, preliminary to a subfacial challenge to a search warrant, a defendant must offer evidence casting some reasonable doubt on the veracity of material statements made by the affiant․  Thus before an in camera review may be ordered, the defendant must raise some reasonable doubt regarding either the existence of the informant or the truthfulness of the affiant's report concerning the informant's prior reliability or the information he furnished․  [¶] ․  [T]he motion ․ should include affidavits supporting defendant's assertions of misstatements or omissions in the warrant affidavit.   Further, a defendant should, if possible, specify the information he seeks, the basis for his belief the information exists, and the purpose for which he seeks it.   Although it is true that in cases involving confidential informants the defendant may be hindered in providing such specifics, we emphasize that a ‘conclusionary’ statement that he needs the information will not suffice to entitle him to obtain an in camera hearing and portions of the police background materials on the confidential informant.”  (Id. at pp. 21–22, 265 Cal.Rptr. 690, 784 P.2d 633.)  “After its in camera examination of the materials requested by the defendant, the court may then order production of only those documents that are relevant to the material inaccuracies asserted by the defendant.”  (Id. at p. 23, 265 Cal.Rptr. 690, 784 P.2d 633.)

Here the predicate for the two stage procedure set forth in Luttenberger is missing.   Since the defendant is denied access to the material facts relied on by the prosecution to establish probable cause, the defendant cannot make the preliminary showing required by that decision to obtain an in camera hearing, much less facts relevant to material inaccuracies that would justify discovery.   In Luttenberger the defendant had direct access to a complete search warrant affidavit and could use the knowledge obtained from reading it to raise a reasonable doubt about its veracity.

In People v. Seibel, supra, 219 Cal.App.3d 1279, 269 Cal.Rptr. 313, the court was presented with an affidavit that had been sealed to protect the identity of a confidential informant.   Defendant was denied access to the material facts the prosecution was relying on to establish probable cause.   The court recognized that the defendant could not reasonably be expected to make the preliminary showing required by Luttenberger.   It then held that once the court determines the affidavit is properly sealed, it “must then treat the matter as if defendant has made the preliminary showing and must hold an in camera examination as required by Luttenberger.   Because in sealed affidavit cases such as the one before us the defendant may be completely ignorant of all critical portions of the affidavit, the defense will be unable to specify what materials the court should review in camera.   The court, therefore, must take it upon itself both to examine the affidavit for possible inconsistencies and to inform the prosecution what materials or witnesses it requires․ [¶]  Because the defendant's access to the essence of the affidavit is curtailed or eliminated, the lower court may, in its discretion, find it necessary and appropriate to call and question the affiant and/or the informant, ․”  (Id. at pp. 1297–1298, 269 Cal.Rptr. 313.)

For the reasons set forth earlier in this opinion, we do not agree with Seibel's conclusion that an in camera hearing presided over by a proactive judge, who will presumably be speculating on and trying to assert all tenable challenges to the magistrate's finding of probable cause and to the veracity of the statements made in the sealed affidavit, affords the defendant the type of procedural vehicle for asserting her Fourth Amendment rights contemplated and required by the Due Process Clause of the Fourteenth Amendment.

The proscription against the issuance of search warrants absent probable cause is a fundamental right and is explicitly set forth in the United States and California Constitutions.   Its enforcement cannot be entrusted, in toto, to trial judges who may or may not have the legal sophistication to recognize the nuances of criminal procedure absent the assistance and vigorous advocacy of defendant and her attorney.   Likewise, the more limited right under the Fourth Amendment to challenge the validity of a search warrant by controverting the factual allegations made in the affidavit in support of the warrant, cannot be adequately protected by a trial judge, presiding in camera, without any direction from defendant and her counsel regarding which statements in the sealed affidavit relevant to probable cause may constitute material inaccuracies.   In the peculiar setting before us, where the defendant is denied access to all the material facts relied on by the prosecution to establish probable cause, the judge is simply not aware of the factual information known to defendant that could rebut the accuracy of the sealed statements.   Since defendant and her counsel are completely ignorant of the material facts relied on by the prosecution to establish probable cause, they cannot provide the trial judge with any meaningful assistance.

CONCLUSION

The judgment is reversed.   On remand defendant is entitled to withdraw her plea which was entered based upon the court's erroneous denial of her suppression motion.   The prosecution will be afforded the opportunity to voluntarily disclose Exhibit “C” should defendant withdraw her plea.   The trial court will take such further action as is thereafter required.

FOOTNOTES

1.   Since our holding regarding this contention is dispositive, we decline to address defendant's other contentions on appeal.

2.   All further statutory references are to the Evidence Code unless otherwise specified.

3.   Evidence Code section 1041 provides:  “(a) Except as provided in this section, a public entity has a privilege to refuse to disclose the identity of a person who has furnished information as provided in subdivision (b) purporting to disclose a violation of a law of the United States or of this state or a public entity in this state, and to prevent another from disclosing such identity, if the privilege is claimed by a person authorized by the public entity to do so and:(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state;  or(2) Disclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice;  but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the identity of the informer be disclosed in the proceeding.   In determining whether disclosure of the identity of the informer is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.(b) This section applies only if the information is furnished in confidence by the informer to:(1) A law enforcement officer;(2) A representative of an administrative agency charged with the administration or enforcement of the law alleged to be violated;  or(3) Any person for the purpose of transmittal to a person listed in paragraph (1) or (2).(c) There is no privilege under this section to prevent the informer from disclosing his identity.”Evidence Code section 1042 provides in relevant part:  “(a) Except where disclosure is forbidden by an act of the Congress of the United States, if a claim of privilege under this article by the state or a public entity in this state is sustained in a criminal proceeding, the presiding officer shall make such order or finding of fact adverse to the public entity bringing the proceeding as is required by law upon any issue in the proceeding to which the privileged information is material.(b) Notwithstanding subdivision (a), where a search is made pursuant to a warrant valid on its face, the public entity bringing a criminal proceeding is not required to reveal to the defendant official information or the identity of an informer in order to establish the legality of the search or the admissibility of any evidence obtained as a result of it.(c) Notwithstanding subdivision (a), in any preliminary hearing, criminal trial, or other criminal proceeding, any otherwise admissible evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, is admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure.”

4.   Defendant argues that the trial court's issuance of a certificate of probable cause pursuant to former Penal Code section 1237.5 affords her a right to appeal where she otherwise would not be entitled to one.   Such is not the case.   The issuance of a certificate of probable cause pursuant to former section 1237.5 does not operate to expand the grounds upon which an appeal may be taken as that section related only to the procedure in perfecting an appeal from a judgment based on a plea of guilty.  (People v. Devaughn, supra, 18 Cal.3d at p. 896, 135 Cal.Rptr. 786, 558 P.2d 872;  People v. Bonwit (1985) 173 Cal.App.3d 828, 831, 219 Cal.Rptr. 297.)Penal Code section 1237.5 now provides in pertinent part that “[n]o appeal shall be taken by a defendant from a judgment of conviction upon a plea of ․ nolo contendere ․ except where the defendant has filed as part of the notice of appeal a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings․”

5.   Penal Code section 1538.5, subdivision (m), 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 such judgment of conviction is predicated upon a plea of guilty.   Such review on appeal may be obtained by the defendant providing 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.”

6.   Independent of her motion to disclose the contents of Exhibit C of the search warrant affidavit, defendant filed a motion to disclose the identity of the confidential informant.   The basis of the motion was that the informant was a material witness regarding her guilt or innocence.   Under Castro and Duval defendant's plea of no contest bars an appeal from the denial of this motion and she appropriately does not contend otherwise.  (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.)

7.   California Constitution, article I, section 28(d), has eliminated a defendant's right to suppress evidence whose seizure satisfies the Fourth Amendment, but violates article I, section 13 of the California Constitution.  (In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.)   This abrogation of what had been a defendant's ability to benefit by an independent and stricter standard under article I, section 13 has been found not to violate the Due Process Clause of the Fourteenth Amendment.  (California v. Greenwood (1988) 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30.)

8.   Penal Code section 1525 provides in pertinent part:  “A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.”The public possesses a statutory right to view the documents associated with a warrant's issuance.  Penal Code section 1534, subdivision (a) requires in part that “․ if [a] warrant has been executed, the documents and records [of the court relating to the warrant] shall be open to the public as a judicial record.”  Evidence Code section 1041, subdivision (a), relating to the privilege of nondisclosure of the identity of a confidential informant, creates an exception to the public disclosure set forth in Penal Code section 1534.  (People v. Sanchez (1972) 24 Cal.App.3d 664, 677–678, 101 Cal.Rptr. 193.)

9.   See fn. 3 ante.

10.   See ante fn. 3.

11.   At the time Keener was decided Penal Code section 1527 provided:  “The affidavit or affidavits must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.”

12.   The Attorney General's reliance on Swanson v. Superior Court, supra, 211 Cal.App.3d 332, 259 Cal.Rptr. 260 is mixed since he appears to argue in part that Swanson is inapplicable here because the decision concerned oral affidavits.   However, in Swanson the court expressly stated oral and written affidavits should be treated identically with regard to sealing and disclosure.  (Id. at pp. 338–339, 259 Cal.Rptr. 260.)   Nor does the Attorney General suggest why a defendant's rights should be affected by the form of the affidavit.

13.   The Franks standard:  “Balancing the competing considerations, ․ a defendant is constitutionally entitled to a postsearch evidentiary hearing on the veracity of the warrant affidavit, but only after he first makes a ‘substantial preliminary showing’ that (1) the affidavit included a false statement made ‘knowingly and intentionally, or with reckless disregard for the truth,’ and (2) ‘the allegedly false statement is necessary to the finding of probable cause.’  (Citation.)  Exclusion of evidence seized under the warrant is required if (1) at the evidentiary hearing ‘the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence,’ and (2) ‘with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause.’   (Citation.)”  (People v. Luttenberger, supra, 50 Cal.3d at p. 10, 265 Cal.Rptr. 690, 784 P.2d 633, quoting Franks, supra, 438 U.S. at pp. 155–156, 98 S.Ct. at pp. 2676–2677.)

DAVIS, Associate Justice.

PUGLIA, P.J., and SPARKS, J., concur.