Opinion
H045318
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. RODNEY O'NEIL FLUKER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS151322A)
Defendant Rodney O'Neil Fluker contends the trial court erred by denying his motions to unseal, quash, and traverse a search warrant that had been sealed to protect the identity of a confidential informant. We conclude the trial court correctly denied the motions to unseal and quash, and that the record does not show error in denying the motion to traverse. We will therefore affirm the judgment.
I. BACKGROUND
Based on information from a confidential informant, police obtained a warrant to search defendant's home for evidence of cocaine sales. When they conducted the search, officers found cocaine, $700 in cash, and a police scanner. Defendant was detained outside and had two cell phones, cash, and more cocaine. Incoming messages on one of the phones appeared to be inquiries about buying drugs.
Defendant was charged with possessing cocaine for sale. (Health & Saf. Code, § 11351.) Before trial, he challenged the search warrant, asserting there were insufficient facts to establish probable cause to search his home. The portion of the affidavit purporting to provide probable cause for the warrant had been ordered sealed to protect the confidential informant's identity. As part of his challenge to the warrant, defendant sought an order unsealing the supporting affidavit to determine whether the information from the confidential informant was enough to establish probable cause for a search. He also moved to quash and traverse the warrant.
Before ruling on defendant's motions, the trial court reviewed the warrant and supporting affidavit in camera. On the record in open session, the court stated, "The Court's reviewed the affidavit, the search warrant and affidavit in its entirety. [¶] Is there any other evidence or any other arguments that need to be made by either side?" Both sides submitted the matter for decision. (We will assume, without deciding, that defense counsel's failure to object to the procedure forfeited the argument defendant now makes that the trial court did not conduct an appropriate in camera proceeding. We elect to reach the merits of the issue regardless, and therefore do not address defendant's alternative ineffective assistance of counsel arguments.)
The court then ruled: "So the question I think I have to answer is whether or not the totality of the information provided to the magistrate at the time that the magistrate authorized the issuance of the warrant was sufficient to establish probable cause that the items sought would be located at the defendant's residence or in his possession. [¶] And I think that a reading of the totality of the circumstances provided to the magistrate would satisfy that. So there was plenty of probable cause in this to justify issuance of the warrant." Based on its in camera review of the warrant and affidavit, the court denied the motion to unseal the affidavit, denied the motion to quash the warrant, and denied the motion to traverse the warrant.
At trial the prosecution presented evidence seized during the search. The jury found defendant guilty as charged. He was sentenced to a three-year term, with one year to be served in county jail and the remainder on mandatory supervision under Penal Code section 1170, subdivision (h). Defendant contends the trial court erred by denying the three motions.
II. DISCUSSION
Searches conducted under the authority of a warrant are presumed valid. (U.S. v. Leon (1984) 468 U.S. 897, 913-914.) But a defendant can still challenge such a search as unreasonable under the Fourth Amendment. He or she can move to quash the warrant by asserting that it is not supported by adequate facts showing probable cause for the search. (People v. Heslington (2011) 195 Cal.App.4th 947, 957, fn. 7.) Even when the warrant application (taken at face value) establishes probable cause, a defendant can move to traverse the warrant—that is, to present evidence showing that information necessary to the finding of probable cause is false. (Ibid.) But there is no automatic right to traverse a warrant: to obtain a hearing where evidence can be presented attacking the supporting affidavit's veracity, a defendant must specifically allege which information is false and make an offer of proof as to how that will be shown. (Franks v. Delaware (1978) 438 U.S. 154, 171.)
As occurred here, a search warrant may be issued based on information from a confidential informant. Because the identity of a confidential informant is privileged and not subject to public disclosure (Evid. Code, § 1040), a court must seal portions of a search warrant affidavit that disclose an informant's identity. (People v. Hobbs (1994) 7 Cal.4th 948, 959 (Hobbs).) But sealing the parts of the affidavit that reveal an informant's identity will often deprive a defendant of information that was relied on to establish probable cause for the warrant. Without that information, a defendant may be unable to make the showing necessary to support a motion to quash or to meet the standard for an evidentiary hearing on a motion to traverse. This creates an unfair and constitutionally problematic situation. (See People v. Luttenberger (1990) 50 Cal. 3d 1, 18.)
The California Supreme Court in Hobbs fashioned a procedure to address that issue. When a defendant challenges a search warrant issued on a sealed affidavit, the trial court must review the warrant application in camera to determine whether the affidavit was properly sealed. If the court determines there are not adequate grounds to maintain the confidentiality of the informant's identity, it must order the affidavit disclosed to the defendant. Unsealing affords the defendant an opportunity to show that the warrant was issued based on a lack of probable cause, or that information necessary to the probable cause finding is false. (Hobbs, supra, 7 Cal.4th 948, 972-973.) If, on the other hand, the court finds the affidavit should remain sealed, it must then determine whether the warrant application materials (including any sealed portions), are on their face sufficient to establish probable cause for a search. (Id. at p. 975.) If they are, the motion to quash the warrant is properly denied without further inquiry.
A motion to traverse a warrant, however, is a "subfacial challenge" that seeks to go beyond the face of the warrant application by attacking the underlying veracity of statements made in the application. (People v. Heslington, supra, 195 Cal.App.4th 947, 957, fn. 7.) To successfully challenge a facially valid search warrant, a defendant must show that the supporting affidavit contains false statements or omits material information. (People v. Scott (2011) 52 Cal.4th 452, 484.) Either showing requires extrinsic evidence, and it is normally the defendant's obligation to specify what additional evidence the court should consider. (See Franks v. Delaware, supra, 438 U.S. 154, 171.) But because a defendant challenging a sealed affidavit "may be completely ignorant of all critical portions of the affidavit, the defense will generally 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 or insufficiencies regarding the showing of probable cause, and inform the prosecution of the materials or witnesses it requires. The materials will invariably include such items as relevant police reports and other information regarding the informant and the informant's reliability. [¶] Furthermore, because the defendant's access to the essence of the affidavit is curtailed or possibly eliminated, the lower court may, in its discretion, find it necessary and appropriate to call and question the affiant, the informant, or any other witness whose testimony it deems necessary to rule upon the issues." (Hobbs, supra, 7 Cal.4th 948, 973.)
Having independently reviewed the sealed portion of the affidavit, we find no error in the trial court's decision that it should remain sealed. It is reasonably probable the sealed information would identify the informant. (See People v. Martinez (2005) 132 Cal.App.4th 233, 241.)
Similarly, we have independently reviewed the trial court's determination that the supporting affidavit establishes probable cause for the search and we find no error in denying the motion to quash. On its face, the affidavit establishes a fair probability that contraband or evidence of a crime would be found in defendant's home. (See People v. Camarella (1991) 54 Cal.3d 592, 601.)
Regarding the motion to traverse the warrant, we find nothing in the record that provides a basis for reversal. It is a fundamental rule of appellate review that the appellant has the burden to affirmatively demonstrate error. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.) And unless the record indicates otherwise, we presume that the trial court properly followed established law. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) The Hobbs procedure is established law. Both defendant's moving papers in the trial court and the prosecution's opposition cited Hobbs and consistently described the appropriate in camera proceedings. When the trial court denied the motion to traverse, we assume—as we must—that in doing so it followed the correct procedure.
Though the court did not indicate on the record how it came to its conclusion on the motion to traverse, the absence of that information does not affirmatively show a failure to follow the necessary procedure. Defendant therefore has not demonstrated error. That is in contrast to People v. Galland (2004) 116 Cal.App.4th 489, a case cited by defendant, where the trial court's failure to follow the Hobbs procedure was apparent because the record reflected that the court never even looked at the sealed portion of the affidavit. (Id. at p. 494.) Applying the presumption that the trial court followed existing law in conducting its in camera review, we will not disturb its ruling on the motion to traverse.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
I CONCUR:
/s/_________
Danner, J. Mihara, Acting P. J., Concurring in the Judgment.
Defendant Rodney O'Neil Fluker challenges the trial court's consideration of and rulings on his motions to unseal the one sealed page of the search warrant affidavit and to quash and traverse the warrant. He claims that the trial court failed to follow the procedures set forth in People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). While I agree with my colleagues that the judgment should be affirmed, I am compelled to write separately to explain my reasons for reaching this conclusion.
I. Background
A warrant was issued on May 6, 2015 for a search of defendant and his apartment and vehicle. The warrant was based on an affidavit by Detective Richard Cox. The unsealed portion of the affidavit recounted that a confidential reliable informant (CRI) had told Detective Cox of defendant's "on-going involvement with the sales of cocaine." The CRI told Detective Cox that the CRI had known defendant for "several years" and had "witnessed" defendant possessing and selling cocaine numerous times, including possessing cocaine within the last month. A sealed page of the affidavit contained further information provided to Detective Cox by the CRI about defendant and further information about the CRI and about the CRI's demonstrated reliability.
A search pursuant to the warrant resulted in the seizure of over 13 grams of cocaine, $543 in cash, and two cell phones from defendant's person, and additional cocaine and $700 in cash from his residence. Information on one of defendant's cell phones confirmed that defendant was selling cocaine.
Defendant waived preliminary examination and was charged by information with possession of a controlled substance for sale (Health & Saf. Code, § 11351). He filed a pro forma motion to quash or traverse the search warrant and to unseal the sealed portion of the affidavit. His motion cited Hobbs, but he provided no explanation of how the warrant affidavit in this case might be deficient. Instead, the motion simply declared that the "affidavit for search warrant does not constitute probable cause for its issuance." Defendant asserted that he needed "discovery of information" concerning the informant (criminal history, reliability) "in order to determine whether to file other motions . . . ."
The prosecution filed opposition to the motion. The opposition described at length the procedure set forth in Hobbs. The prosecution argued that defendant had failed to identify any misstatements or omissions in the affidavit so he was not entitled to a hearing on his motion to traverse.
At the hearing on defendant's motions, the attorneys stipulated that the court "in camera can take a look at the affidavit" "[i]n its entirety." The court then took a break and "reviewed . . . the search warrant and the affidavit in its entirety." After doing so, the court asked the attorneys: "Is there any other evidence or any other arguments that need to be made by either side?" Both the prosecutor and defendant's trial counsel submitted the matter without further comment.
The court first decided that the sealed portion of the affidavit should remain sealed because "there would be danger to the future usefulness of this informant" and "a risk to the welfare of this informant should the sealed portion of the affidavit be disclosed." The court noted that "this informant has provided useful information . . . I think 40 or 50 different times." The court then proceeded to consider the motion to quash. It found "there was plenty of probable cause in this [affidavit] to justify the issuance of the affidavit." Without further comment about the motion to traverse, the court ruled: "The motion to suppress, quash, traverse and unseal the search warrant is denied." Defendant's trial counsel said nothing about any issues remaining unresolved by the court's ruling and did not argue that the court was required to make express findings on the motion to traverse. Defendant proceeded to a jury trial, and he was convicted and sentenced to three years with two years suspended.
Defendant subsequently obtained a new attorney who filed a motion to disclose the identity of the confidential informant and unseal the sealed page of the affidavit. He claimed that the informant "may be a material witness on the issue of guilt or innocence." His motion claimed that only the informant could say whether defendant possessed the drugs for sale. The prosecution opposed the disclosure motion. It asserted that defendant had failed to satisfy his burden to show that the CRI could provide exculpatory information. Defendant's trial counsel subsequently withdrew the motion. Defendant does not address that withdrawn motion on appeal.
II. Discussion
Defendant filed a motion to unseal the sealed portion of the affidavit and to quash or traverse the search warrant and cited Hobbs. Hobbs describes the steps that a trial court must follow when such a motion is filed and, as here, part or all of a search warrant affidavit has been sealed to protect the identity of a confidential informant. In this situation, "the defendant cannot reasonably be expected to make the preliminary showing" normally required for a motion to traverse the warrant nor can the defendant assess the potential validity of a motion to quash based on a lack of probable cause. (Hobbs, supra, 7 Cal.4th at pp. 971-972.) "[W]here, . . . all or a major portion of the search warrant affidavit has been sealed in order to preserve the confidentiality of the informant's identity, a defendant cannot reasonably be expected to make even the 'preliminary showing' required for an in camera hearing under Luttenberger. For this reason, where the defendant has made a motion to traverse the warrant under such circumstances, 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, supra, 7 Cal.4th at p. 972, fn. 6, italics omitted.)
People v. Luttenberger (1990) 50 Cal.3d 1 (Luttenberger) concerned a request by a defendant for discovery of information concerning a confidential informant for the purpose of seeking a Franks hearing, but it did not involve a search warrant affidavit that was partially sealed. The California Supreme Court held in Luttenberger that such a defendant could obtain an in camera hearing if he made a preliminary showing. (Luttenberger, at p. 7.)
The first step under Hobbs is for the trial court to determine "whether sufficient grounds exist for maintaining the confidentiality of the informant's identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informant's identity." (Hobbs, supra, 7 Cal.4th at p. 972.)
The second step concerns the motion to traverse, which is aimed at seeking a hearing under Franks v. Delaware (1978) 438 U.S. 154 (Franks) concerning the veracity of the affidavit. "If the affidavit is found to have been properly sealed, and the defendant has moved to traverse the warrant, the court should then proceed to determine 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. Generally, in order to prevail on such a challenge, the defendant must demonstrate 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.' " (Hobbs, supra, 7 Cal.4th at p. 974.)
Since the defendant has no knowledge of the sealed portion of the affidavit, "[t]he court, therefore, must take it upon itself both to examine the affidavit for possible inconsistencies or insufficiencies regarding the showing of probable cause, and inform the prosecution of the materials or witnesses it requires. The materials will invariably include such items as relevant police reports and other information regarding the informant and the informant's reliability." (Hobbs, supra, 7 Cal.4th at p. 973.) "If the trial court determines that the materials and testimony before it do not support defendant's charges of material misrepresentation, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse." (Id. at p. 974.) "If, on the other hand, the court determines there is a reasonable probability that defendant would prevail on the motion to traverse," then additional steps must be taken. (Id. at pp. 974-975.)
The final step is consideration of the motion to quash. "[I]f the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant (Pen. Code, § 1538.5), 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." (Hobbs, supra, 7 Cal.4th at p. 975.) "If the court determines, based on its review of all the relevant materials, that the affidavit and related materials furnished probable cause . . . , the court should simply report this conclusion to the defendant and enter an order denying the motion to quash. [Citations.] If, on the other hand, the court determines, based on its review of all relevant materials and any testimony taken at the in camera hearing, that there is a reasonable probability the defendant would prevail on his motion to quash the warrant," additional procedures are required. (Ibid.)
Defendant makes four arguments on appeal. First, defendant asks us to independently review the trial court's decision that the sealed page of the affidavit should remain sealed. Second, defendant argues that the trial court erroneously failed to follow the Hobbs procedure in ruling on his motion to traverse the warrant. He argues that the trial court "evidently did not consider" his motion to traverse "separately from the motion to quash the warrant." He faults the trial court for failing to expressly state that it had followed the Hobbs procedure in dealing with the motion to traverse. Defendant contends that the trial court failed to comply with Hobbs, and he asks us to either remand for compliance or perform the Hobbs procedures ourselves. Third, defendant asks us to independently review the trial court's ruling on his motion to quash. Finally, defendant asserts that, if his trial counsel's failure to seek a more explicit ruling on his motion to traverse forfeited his appellate contention in that regard, his trial counsel was prejudicially deficient in failing to press for such a ruling.
A. Sealing
The first step under Hobbs is for the trial court to determine whether the sealed material should remain sealed to protect the identity of the confidential informant. The trial court explicitly addressed this step and assessed whether the sealed page of the affidavit should remain sealed. It expressly found that disclosure of the identity of the informant would endanger the future usefulness of the informant and pose a risk to the welfare of the informant. Consequently, it concluded that the sealed page needed to remain sealed. The record indisputably supports this ruling, so it must be upheld.
B. Motion to Quash
Under Hobbs, the trial court addresses a motion to quash by assessing whether the affidavit and any other materials contain sufficient probable cause to support the warrant. The trial court explicitly complied with this step under Hobbs. It examined the entire affidavit and, noting that "this informant has provided useful information . . . I think 40 or 50 different times," it found "there was plenty of probable cause in this [affidavit] to justify the issuance of the [warrant]." Again, the record indisputably supports this ruling, so it must be upheld.
C. Motion to Traverse
Defendant claims that the trial court erred in denying his motion to traverse because the court did not expressly state that it had assessed the merits of his motion to traverse under the Hobbs procedure. He maintains that the trial court "evidently did not consider" his motion to traverse "separately from the motion to quash the warrant."
Hobbs does not require the trial court to expressly describe the nature of its review of a motion to traverse under Hobbs. The only suggestion in Hobbs that a trial court must make any statement other than a ruling on the motion is the California Supreme Court's statement that, "[i]f the trial court determines that the materials and testimony before it do not support defendant's charges of material misrepresentation, the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse." (Hobbs, supra, 7 Cal.4th at p. 974, italics added.) Thus, defendant's argument amounts to a claim that the trial court erred by failing to "report" to him that it had found no support for a claim of material misrepresentation before it stated that it was denying his motion to traverse.
Defendant has failed to identify any basis for reversal here. " '[I]n the absence of any contrary evidence, we are entitled to presume that the trial court . . . properly followed established law.' " (Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) Hobbs is established law, and the parties did not dispute below what Hobbs required of the trial court. Defendant's motion cited Hobbs, and the Hobbs procedure was set forth exhaustively in the prosecution's opposition to defendant's motion. Other than the trial court's failure to expressly "report" the conclusion underlying its ruling on the motion to traverse, there is no indication in the record that the trial court failed to follow the Hobbs procedure in ruling on defendant's motion to traverse. The trial court's express denial of defendant's motion to traverse necessarily implied that the court had made the requisite finding even though it failed to expressly so state.
None of the cases cited by defendant suggests that a reversal is required in this case. People v. Seibel (1990) 219 Cal.App.3d 1279 (Seibel) preceded Hobbs, so the trial court had plainly not attempted to follow the Hobbs procedure. (Seibel, at p. 1298.) In People v. Galland (2004) 116 Cal.App.4th 489 (Galland), the trial court did not even look at the sealed portion of the affidavit, which was not in the appellate record, so the record affirmatively reflected that the trial court had failed to follow the Hobbs procedure. (Galland, at p. 494.) Furthermore, in this case, the sealed page of the affidavit is before this court, and this court is therefore able to confirm that there is no support therein for a claim of material misstatement or any suggestion that there was a need for further evidence to determine whether there had been a material misstatement.
Justice Grover's separate concurrence suggests that the California Supreme Court's decision in Hobbs requires a trial court to order the prosecution to present "extrinsic evidence" at an in camera evidentiary hearing before the court may rule on a motion to traverse a warrant based on an affidavit that is partially sealed. (Conc. opn. of Grover, J., post, at p. 1.) This is a misunderstanding of Hobbs.
The entire purpose of the procedure set forth in Hobbs for dealing with a motion to traverse is to permit a defendant to seek the equivalent of a Franks hearing despite the fact that a portion of the affidavit concerning a confidential informant is sealed. A Franks hearing is required only where there is a preliminary showing that "the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth." (People v. Scott (2011) 52 Cal.4th 452, 484.) The issue at a Franks hearing is not the veracity of the confidential informant, but the veracity of the affiant, here Detective Cox. (Franks, supra, 438 U.S. at p. 170 [hearing concerns "only the question of the integrity of the affiant's representations as to his own activities"].)
In Hobbs, the California Supreme Court endorsed the procedure set forth in Seibel for permitting a defendant seeking a Franks hearing to obtain an in camera review of the sealed portion of the affidavit. (Hobbs, supra, 7 Cal.4th at p. 964 ["endors[ing] the analysis of Seibel"].) The Seibel court had held: "[T]he court shall examine the affidavit for possible inconsistencies, inform the prosecution of what materials it requires (including police reports and other information on the informant, the intermediary, and on the reliability of each of them), and call for questioning, as the court deems necessary and appropriate, the affiant, the informant, the intermediary, and/or other witnesses. After this in camera proceeding, if the court determines that there is no basis for appellant's attacking the veracity of the affidavit, the court should report that conclusion to appellant and deny the motion." (Seibel, supra, 219 Cal.App.3d at p. 1299, italics added.)
The Hobbs court gave this description of the procedure to be employed by the trial court: "The court, therefore, must take it upon itself both to examine the affidavit for possible inconsistencies or insufficiencies regarding the showing of probable cause, and inform the prosecution of the materials or witnesses it requires. The materials will invariably include such items as relevant police reports and other information regarding the informant and the informant's reliability. [¶] Furthermore, because the defendant's access to the essence of the affidavit is curtailed or possibly eliminated, the lower court may, in its discretion, find it necessary and appropriate to call and question the affiant, the informant, or any other witness whose testimony it deems necessary to rule upon the issues." (Hobbs, supra, 7 Cal.4th at p. 973, italics added.) The Hobbs court then described the sole determination that the trial court must make in ruling on a defendant's motion to traverse: The court must "determine 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." (Id. at p. 974.)
Only an overly semantic parsing of the Hobbs opinion could support a conclusion that a trial court is mandated to require the presentation of extrinsic evidence at an evidentiary hearing, and such a parsing would be inconsistent with the purpose of the Hobbs procedures. In light of the Hobbs court's references to the trial court's determination of what it "requires" and to the trial court's "discretion," the court's "will invariably include" language cannot be read as a mandate. (Hobbs, supra, 7 Cal.4th at p. 973.) A Franks hearing is justified only if there are indications that the affiant made false statements in the affidavit. Where a review of the entire affidavit itself establishes that there is no basis for any claim that it contains false statements, a trial court may determine that it does not require any further material to rule on the motion to traverse. The trial court is not required to embark on a fishing expedition to investigate the veracity of the affiant's statements in the affidavit.
Here, except for details about the informant and the information provided by the informant, the unsealed portion of the affidavit provided defendant with full knowledge of the identity and experience of the affiant, Detective Cox. Nothing in the sealed portion of the affidavit suggested that any of Detective Cox's statements in the sealed or unsealed portions of the affidavit were false or that those statements had been made with reckless disregard for the truth. Under Hobbs, a trial court is not bound to demand that the prosecution present extrinsic evidence at an evidentiary hearing if the court is able to conclude based on "the public and sealed portions of the search warrant affidavit" that there is no support for a motion to traverse. (Hobbs, supra, 7 Cal.4th at p. 974.) The California Supreme Court's ruling in Hobbs permits a trial court to exercise its discretion in determining whether extrinsic evidence and an evidentiary hearing are necessary for a decision on the motion to traverse after the court has reviewed the entire affidavit. Here, the trial court reviewed the entire affidavit and implicitly determined that no extrinsic evidence was necessary because there was no basis in the affidavit for a preliminary showing that Detective Cox had made any false or reckless statements in the affidavit. Since the record supports this determination, the trial court did not abuse its discretion in deciding to forego extrinsic evidence and did not err in denying defendant's unsupported motion to traverse.
III. Conclusion
I agree with my colleagues that the judgment should be affirmed.
/s/_________
Mihara, Acting P. J. Grover, J., Concurring
I write separately to emphasize my view that under People v. Hobbs (1994) 7 Cal.4th 948, 972, when a defendant moves to traverse a search warrant, a significant portion of which is sealed, the trial court ordinarily will request from the prosecution extrinsic evidence sufficient to test the credibility of the warrant affidavit. In a sealed affidavit case, there is no requirement that the defendant make any preliminary showing of unreliability before the court's obligation to request those materials is triggered. (See Hobbs, at p. 972, fn. 6; see also People v. Galland (2004) 116 Cal.App.4th 489, 494 [Hobbs "specifically ruled out" the requirement of a preliminary showing to obtain in camera review of extrinsic evidence].) Indeed, it would likely be impossible for a defendant from whom the pertinent portions of the affidavit are hidden to make such a showing, effectively precluding such a defendant from traversing the warrant. That is the unfairness the Supreme Court squarely addressed in Hobbs. (Hobbs, at p. 973 [defendant in sealed affidavit case "will generally be unable to specify what materials the court should review in camera"; solution is for the trial court to inform the prosecution of any materials or witnesses needed to test affidavit veracity].)
Denial of a motion to traverse a sealed warrant based solely on the information contained in the warrant application itself eliminates the distinction between a motion to quash (which tests whether the warrant application on its face establishes probable cause) and a motion to traverse (which tests whether extrinsic evidence shows statements in the affidavit are materially false or misleading). (See People v. Heslington (2011) 195 Cal.App.4th 947, 957, fn. 7.)
Although the record in this case does not overcome the presumption of correctness due a trial court's ruling when it comes to us, it is imperative that trial courts scrupulously follow the Hobbs procedure when ruling on a motion to traverse in sealed affidavit cases. Hobbs struck a careful balance between law enforcement's interests in protecting the identity of confidential informants, versus a defendant's Fourth Amendment right to impeach the veracity of statements relied on in a search warrant affidavit. (See Franks v. Delaware (1978) 438 U.S. 154, 168.) The Constitution demands vigilance on the part of trial courts to maintain that balance.
/s/_________
Grover, J.