PEOPLE v. HILL

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. John HILL, Defendant and Appellant.

No. D016670.

Decided: August 18, 1993

Ronald K. Olson, San Diego, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Keith I. Motley and Holley A. Hoffman, Deputy Attys. Gen., for plaintiff and respondent.

John Hill entered a negotiated no contest plea to possessing a firearm by a felon (Pen.Code, § 12021, subd. (a).) 1  The court granted probation with conditions including 365 days local custody.   Hill appeals, contending the court erred in denying his motion to suppress evidence pursuant to section 1538.5.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts relevant to the disposition of this appeal concern Municipal Court Judge Edward Sturgeon's issuance of a search warrant on January 26, 1991, resulting in Hill's arrest for possessing a firearm.

Judge Sturgeon issued the search warrant based on the affidavit of San Diego County Deputy Sheriff Richard Bolter, a handwritten note by a confidential informant, and the confidential informant's oral testimony.

In his affidavit Bolter recited his extensive training and experience as a law enforcement officer working in controlled substance investigations.   He then stated that on January 25, 1991 he

“contacted a subject in Lemon Grove [who] ․ stated he/she would assist ․ in locating narcotics dealers in the San Diego area.   He/she related the information set forth in the [attached] ․ handwritten [statement] by the subject.  [¶]  The subject told [me] that between January 15, 1991 and January 25, 1991 he/she had been within [Hill's] residence ․ [and] saw John Hill selling powder which he/she recognized as methamphetamine.   He/she has seen scales, packaging and has seen John Hill package and sell methamphetamine inside the residence.”

Bolter further requested the informant's identity remain confidential because disclosure would “jeopardize the life and safety of the informant and will destroy the informant's future usefulness to law enforcement․”  Bolter made the confidential informant available to Judge Sturgeon to answer questions with respect to the informant's reliability and credibility.

Judge Sturgeon reviewed the contents of the officer's affidavit and the informant's handwritten note and orally examined the informant under oath.   Based on the oral examination, Judge Sturgeon signed a statement “find [ing the informant's handwritten note] to be truthful.”   He then sealed the handwritten note and issued the search warrant.   During the ensuing search, officers found a firearm but did not locate any controlled substances or related manufacturing or sales paraphernalia.

Hill moved to suppress the evidence, contending (1) his due process rights were violated by the sealing of the confidential informant's handwritten note and the unavailability of a written transcript of the oral proceedings before the magistrate and (2) the informant's statements were untrue, requesting an in camera review of the sealed statement to determine the truthfulness of the informant's statements.2  (See People v. Luttenberger (1990) 50 Cal.3d 1, 21–22, 265 Cal.Rptr. 690, 784 P.2d 633.)   In support of these contentions Hill submitted his declaration, stating:

“I did not have any narcotic paraphernalia or packaging materials in my residence ․ the two weeks prior to the search.   Nor was I selling methamphetamine or packaging methamphetamine for sale at the residence during that two week period.”

Immediately before the hearing on the motion, the court and both counsel spoke informally with Judge Sturgeon.   The court summarized the discussion as follows:

“It would appear that Judge Sturgeon ․ place[d] the confidential informant under oath, ․ examined [him] using a checklist approach ․ and it would appear that the judge did find the confidential informant to be both credible and reliable in his opinion.  [¶]  It would also appear that in connection with this interview with the confidential informant ․ a court reporter was not present and a tape recording was not made․”

After both counsel presented their arguments, the court reviewed the informant's handwritten statement in camera and then denied Hill's motion, finding that although “the information was conclusory” and the affidavit contained no facts which established the informant's credibility and reliability, the officer acted in good faith:

“Under these circumstances, although it is, perhaps, not the best procedure to have been followed in order to make the best so-called record for review purposes and for the protection of the defendant and for society, it does appear that the information was submitted, was sufficient, believed in good faith;  and as a result I will uphold the validity of the warrant and that motion will be denied.”

DISCUSSION

I.

People v. Luttenberger, supra, 50 Cal.3d 1, 265 Cal.Rptr. 690, 784 P.2d 633 clarified the scope of a criminal defendant's right to information regarding a confidential informant.   Balancing the rights of a defendant and the legitimate needs of law enforcement, Luttenberger held a defendant must initially raise “some reasonable doubt regarding either the existence of the informant or the truthfulness of the affiant's report ․”  (Id. at p. 22, 265 Cal.Rptr. 690, 784 P.2d 633.)   Once this preliminary showing is made, the trial court is required to conduct an in camera examination to determine whether the defendant's allegations are supported.  (Id. at p. 24, 265 Cal.Rptr. 690, 784 P.2d 633.)   If “the court finds the requested documents contain information that tends to contradict material representations made in the affidavit, or constitutes material omissions from it, then it should order disclosure of the documents to the defendant.”  (Ibid.)  The court strongly cautioned, however, that before any disclosure the court must “excise all information that could reveal the informant's identity ․ [i]n light of the absolute privilege protecting the informant's identity when the informant's tip goes only to probable cause (Evid.Code, § 1042, subd. (b))․”  (Ibid.)

In Luttenberger, the defendant had direct access to the complete search warrant affidavit, although he did not know the identity of the confidential informant.   In People v. Seibel (1990) 219 Cal.App.3d 1279, 269 Cal.Rptr. 313 the court applied Luttenberger to a situation such as here where all or a portion of the affidavit is sealed.   As Seibel noted, a defendant faced with a sealed affidavit cannot be reasonably expected to make a preliminary showing of substantial doubt necessary to trigger an in camera hearing.   Seibel thus set forth a modified preliminary procedure to ensure a defendant's rights “so ․ clearly set out by ․ Luttenberger ” are protected.  (Id. at p. 1298, 269 Cal.Rptr. 313.)   As described below, the procedure eliminates the need for a threshold showing and places an increased burden on the court to examine relevant written materials and witnesses:

“The court shall ․ hold an in camera hearing to determine first whether the affidavit is properly sealed;  if portions of it are not, the court should unseal them.   Second, the court shall examine the affidavit for possible inconsistencies, inform the prosecution of what materials it requires ․, and call for questioning, as the court deems necessary and appropriate, the affiant, the informant, ․ and/or other witnesses.”  (Id. at p. 1299, 269 Cal.Rptr. 313.)

As in Luttenberger, after the in camera proceeding, the court should order selected disclosure of the documents only if “the information adduced in camera tends to contradict material representations in the affidavit or constitutes material omissions from it․”  (Ibid.)

Keeping in mind the Luttenberger–Seibel guidelines, we examine each of Hill's contentions.

A.

 Hill contends his due process rights were violated because he was not permitted to examine the informant's written statement and thereby precluded from challenging the magistrate's probable cause determination.

As explicitly recognized in Luttenberger and Seibel, Evidence Code section 1042, subdivision (b) 3 provides an “absolute privilege protecting the informant's identity when the informant's tip goes only to probable cause․”  (Luttenberger, supra, 50 Cal.3d at p. 24, 265 Cal.Rptr. 690, 784 P.2d 633;  accord People v. Seibel, supra, 219 Cal.App.3d at pp. 1296–1297, 269 Cal.Rptr. 313;  People v. Flannery (1985) 164 Cal.App.3d 1112, 1116–1117, 210 Cal.Rptr. 899.)   It is undisputed here the confidential informant possessed information relevant only to the probable cause determination and was not a material witness to Hill's guilt or innocence.   In such circumstance the “sealing of virtually all of an entire affidavit is permissible” to the extent “necessary to protect the ․ informant's identity.”  (People v. Seibel, supra, 219 Cal.App.3d at p. 1297, 269 Cal.Rptr. 313;  accord People v. Flannery, supra, 164 Cal.App.3d at pp. 1115–1121, 210 Cal.Rptr. 899.)  “The question of how much may be sealed is ․ one of degree” and is to be resolved by the trial court in an in camera hearing.  (Seibel, supra, 219 Cal.App.3d at pp. 1297–1298, 269 Cal.Rptr. 313.)

Here, the court examined the sealed portion of the affidavit containing the informant's note and determined the contents were necessarily sealed to protect the informant's identity.   On our own examination of the note, we agree with this determination.  Swanson v. Superior Court (1989) 211 Cal.App.3d 332, 259 Cal.Rptr. 260, relied upon by Hill, is inapposite.  Swanson stands for the proposition that a defendant's due process rights are violated when portions of an affidavit are sealed which are not necessary to protect the informant's identity.   Here, unlike Swanson, the only portions of the affidavit which were sealed were those which necessarily would have disclosed the informant's identity.   Thus, there was no violation of Hill's due process rights.

B.

The more significant question raised by this case is whether the court erred in denying Hill's motion to suppress on the basis the officer was acting in good faith.

 As the court implicitly found, the officer's affidavit and the informant's note did not support a finding of probable cause because there was no record of the informant's reliability, veracity, or basis of knowledge.   Because the sole ground for the search warrant was an informant's uncorroborated tip and there were no facts supporting the accuracy or reliability of such tip, we cannot conclude there was a “fair probability” to believe the identified contraband would be found at Hill's residence.  (See Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527;  People v. Camarella (1991) 54 Cal.3d 592, 600–601, 286 Cal.Rptr. 780, 818 P.2d 63.)   In this situation the informant's unrecorded oral testimony cannot be used to establish probable cause.  (See §§ 1525, 1526; 4  Theodor v. Superior Court (1972) 8 Cal.3d 77, 87, 104 Cal.Rptr. 226, 501 P.2d 234 [“the fruits of [an unrecorded oral] examination cannot be considered an affidavit” for purposes of establishing probable cause].) 5

 In United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, the United States Supreme Court created the “good faith” exception to the exclusionary rule, “finding the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.”  (Id. at p. 922, 104 S.Ct. at p. 3420.)   Where a warrant is invalid because the supporting affidavit does not establish probable cause, the relevant inquiry is “whether a reasonable and well-trained officer ‘would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.’ ”  (People v. Camarella, supra, 54 Cal.3d 592, 605, 606, 286 Cal.Rptr. 780, 818 P.2d 63.)

 Deputy Sheriff Bolter submitted his affidavit and a handwritten note of a confidential informant, and brought the informant before the magistrate on a Saturday afternoon.   The magistrate placed the informant under oath, questioned the informant regarding his/her reliability and credibility, and signed a statement expressly “finding [the informant's handwritten note] to be truthful.”   Had an adequate factual basis for such finding been preserved in a written record, there is no question but that there would have been probable cause for the search.

On this record, the fact there was a technical problem 6 with the process did not establish the officer was acting in bad faith.   The deputy did everything possible to bring all relevant information before the magistrate.   He was willing to verify the basis of the affidavit by having the informant personally appear and testify before the magistrate.   Deputy Sheriff Bolter declared in his affidavit that the magistrate “questioned the [informant] under oath [and] found the subject to [be] credible and reliable.”   He additionally provided a place at the end of the affidavit for the magistrate to expressly affirm such finding.   Further, there is no suggestion the officer misrepresented any facts or omitted material information from the magistrate.

This record reflects an officer who acted conscientiously and reasonably attempted to comply with the law.   A reasonable and well trained officer under the circumstances had a right to rely on the magistrate's determination and would not necessarily have realized that the magistrate's failure to establish an appropriate written record was fatal to a probable cause finding.   Thus, this case falls squarely within the “good faith” exception to the exclusionary rule.  (See United States v. Leon, supra, 468 U.S. 897, 104 S.Ct. 3405;  People v. Camarella, supra, 54 Cal.3d 592, 286 Cal.Rptr. 780, 818 P.2d 63.)

II.

Hill alternatively contends the court erred in denying his suppression motion because Judge Sturgeon was disqualified from issuing the search warrant since he had represented Hill in a criminal action nine years earlier.

A.

In support of his contention Judge Sturgeon was disqualified, Hill submitted a declaration stating

“Mr. Eddie C. Sturgeon represented me as my attorney in CRE 49077.   Mr. Sturgeon was my attorney from 1979 through 1983 on CRE 49077.  [¶]  CRE 49077 is the case that resulted in my being placed on probation which I am currently charged with violating.  [¶]  ․ I did not waive any conflict Mr. Sturgeon may have had during the course of his representation of me or thereafter.”

Hill also proffered a copy of an April 7, 1980, probation order pertaining to case number CRE 49077, stating Hill had been convicted of possessing a concealed weapon (§ 12020(a)) and placing Hill on probation for three years with various conditions.   The order confirmed “E. Sturgeon” represented Hill in the matter.

The district attorney did not submit any opposing declarations, but instead responded by arguing, inter alia, there was no statutory basis for suppression and nothing in the record of the search warrant proceedings established the magistrate recognized the defendant or that the police officer knew or should have known of the prior representation.

The court denied the motion, explaining:

“․ I have no evidence before me that, in fact, Judge Sturgeon had any conflict in connection with the representation of Mr. Hill and his later granting of the warrant.  [¶]  I have no information or evidence that Judge Sturgeon even remembered or recalled his having had the connection with representing Mr. Hill in the 11 years before at that time.   It's a very common name and he was handling, of course, a public defender multiple-type case load at the time ․”

B.

 Hill contends Judge Sturgeon was disqualified from issuing the search warrant based primarily on Code of Civil Procedure section 170.1, subdivision (a)(2), providing a judge shall be disqualified if “[t]he judge served as a lawyer in the proceeding, or in any other proceeding involving the same issues he or she served as a lawyer for any party in the present proceeding or gave advice to any party in the present proceeding upon any matter involved in the action or proceeding.” 7  (Emphasis added.)

In 1979 Judge Sturgeon represented Hill on a charge of possessing a concealed weapon.8  (§ 1020, subd. (a).)  The issues to be determined in that case involved whether Hill illegally possessed a concealed weapon and, if so, the appropriate sentencing.   Hill pled guilty and was placed on probation.   The only issue before Judge Sturgeon in the search warrant proceeding was whether the deputy sheriff had probable cause to search Hill's residence for methamphetamine and paraphernalia related to the use and sale of methamphetamine.   Although the two cases had some conceptual relationship because the search authorized by the warrant produced a weapon which rendered Hill in violation of his earlier probation order,9 the issues before the court in each proceeding were entirely different.   Accordingly, Judge Sturgeon was not disqualified from authorizing the search warrant on the basis of Code of Civil Procedure section 170.1, subdivision (a)(2).10

Hill alternatively contends Judge Sturgeon was disqualified on the basis of Code of Civil Procedure section 170.1, subdivision (a)(6) providing “(C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”   The standard for disqualification under this subdivision is “fundamentally an objective one․  [I]f a reasonable [person] would entertain doubts concerning the judge's impartiality, disqualification is mandated.”  (United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 104, 216 Cal.Rptr. 4.)

Hill says a reasonable person would conclude Judge Sturgeon was unable to rule in an impartial manner because he may have been aware of negative information about Hill by virtue of their confidential attorney-client relationship, including information about Hill's prior criminal history.   The only evidence in support of this claim was Hill's declaration stating “Mr. Sturgeon was my attorney from 1979 through 1983.”   Hill did not elaborate on the nature of the attorney-client relationship or make any attempt to explain what particular confidential information would have been damaging.   Moreover, despite having the opportunity to interview Judge Sturgeon before presenting his suppression motion, Hill failed to come forward with any facts showing Judge Sturgeon recalled or should have recalled that he had represented Hill many years earlier or that he remembered any unfavorable information about Hill.

 A judge's prior representation of a defendant does not result in per se disqualification of the judge.  “[J]udicial responsibility does not require shrinking every time an advocate asserts the objective and fair judge appears to be biased.”  (United Farm Workers, supra, 170 Cal.App.3d at 100, 216 Cal.Rptr. 4.)   On this record, a reasonable person would not have entertained doubts concerning Judge Sturgeon's impartiality.

Judge Sturgeon was not disqualified from issuing the search warrant in this case.

DISPOSITION

Judgment affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise specified.

2.   Hill also moved to suppress the evidence on the basis Judge Sturgeon, was “unqualified” to issue the search warrant because he had served as Hill's attorney nine years earlier.   We set forth the facts relating to this contention in the Discussion section, Part II below.

3.   Evidence Code section 1042, subdivision (b) provides in pertinent part:“(a) [W]here 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.”

4.   Section 1525 states:  “[a] search warrant cannot be issued but upon probable cause, supported by an affidavit, ․”  Section 1526 provides, “(a) The magistrate may, before issuing the warrant, examine on oath the person seeking the warrant and any witnesses he may produce, and must take his affidavit or their affidavits in writing ․ [¶]  (b) In lieu of the written affidavit required in subdivision (a), the magistrate may take an oral statement under oath which shall be recorded and transcribed.   The transcribed statement shall be deemed to be an affidavit for the purposes of this chapter․”

5.   Theodor upheld a search warrant based in part on the magistrate's unrecorded oral examination of an informant.   That case, however, is factually distinguishable because the court expressly found the written affidavits were “valid on their face.”  (Theodor, supra, 8 Cal.3d at p. 87, 104 Cal.Rptr. 226, 501 P.2d 234.)   The court thus concluded the magistrate did not err in opting to conduct an additional oral examination to ensure the existence of probable cause.  (Ibid;  compare also People v. Fortune (1988) 197 Cal.App.3d 941, 243 Cal.Rptr. 189 [finding warrant supported by probable cause, even though based on unrecorded oral testimony, in circumstances where the prosecution reconstructed the oral testimony and the defendant conceded the adequacy of probable cause].)

6.   Our characterization of the inadequate written record as a “technical problem” should not be read as minimizing the requirement that oral statements necessary to establishing probable cause be in writing.   The purpose of such requirement is to ensure a record for judicial review in order to preserve a defendant's constitutional guarantees.  (See People v. Peck (1974) 38 Cal.App.3d 993, 998–1000, 113 Cal.Rptr. 806.)   We would assume in the future police officers and sheriffs deputies will be instructed that where, as here, the written affidavit is insufficient by itself to establish probable cause, any oral testimony supplementing that affidavit must be preserved in writing.

7.   Because the Attorney General does not provide any legal authority to the contrary, we assume for purposes of this case Code of Civil Procedure section 170.1 is an appropriate basis for the suppression of evidence pursuant to section 1538.5.

8.   Although Hill alleged Judge Sturgeon represented him until 1983, he failed to provide any facts concerning the nature of such continuing representation.   The most we can say from this record is that it is possible Judge Sturgeon was somehow involved in representing Hill in one or two probation revocation hearings at some time between 1979 until 1983.

9.   According to the Probation Report in this case, Hill's probation on case number CRE 40977 was “extended numerous times because of [Hill's] refusal to comply with conditions of probation.”

10.   Our conclusion reflects our rejection of Hill's additional contention Judge Sturgeon was disqualified because he “gave advice to [Hill] in the present proceeding upon [a] matter involved in the action or proceeding.”  (Code Civ.Proc. § 170.1, subd. (a)(2).)   There is no evidence Judge Sturgeon advised Hill in the present proceeding.

WIENER, Associate Justice.

KREMER, P.J., and WORK, J., concur.