Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. No. 0670708
Lambden, J.
Defendant Dwain Allen Morehead appeals from the judgment below on the ground that the court followed improper procedures in denying his motion for an in camera hearing, to traverse and/or quash a search warrant, and to suppress all evidence seized pursuant to an unlawful search and seizure. Defendant has also filed a habeas corpus petition based on a claim of ineffective assistance of counsel which, pursuant to our previous order, we consider with the appeal. We affirm the judgment and deny defendant’s petition.
BACKGROUND
According to the evidence considered at the preliminary hearing in the court below, in April 2006, Mendocino County Deputy Sheriff Troy Furman and other law enforcement personnel served a search warrant at defendant’s residence in Ukiah, California. Defendant was in his residence with his toddler son. A portable police scanner was playing on a computer hutch, and a scale and two lines of methamphetamine were on top of the hutch. A search of the residence was conducted.
A gray lock box on a shelf under a coffee table containing numerous packages of methamphetamine, over $2,500 in cash, and a notepad with a list of names and corresponding dollar amounts was found. A baggy of methamphetamine and a Tupperware container of marijuana were found in the bedroom. Four blocks of hashish were found in the kitchen freezer. Two large totes containing various forms of marijuana and packaging materials were found in the garage. A small baggie of methamphetamine was found in defendant’s truck. 41.1 grams of the methamphetamine, 11.5 pounds of marijuana, and 100.5 grams of hashish were seized. Furman concluded that these drugs were possessed for sale.
In April 2006, the district attorney filed a complaint in Mendocino County Superior Court charging defendant and his wife with six counts. It was alleged in counts one through three that defendant had engaged in possession of methamphetamine for sale, a felony; possession of marijuana for sale, a felony; and possession of hashish for sale, a felony. In counts four through six, it was alleged that defendant committed violations of Penal Code section 273a, subdivision (a), relating to the abuse or endangerment of the health of the child, also felonies. It was further alleged that defendant and his wife possessed for sale and sold 28.5 grams or more of methamphetamine, or 57 grams or more of a substance containing methamphetamine, within the meaning of the relevant Penal Code section 1203.073, subdivision (b)(2), and that defendant had served two prior prison terms within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise stated.
In May 2006, before the preliminary hearing, defendant moved for an in camera hearing, to traverse and/or quash the search warrant, and to suppress all evidence seized pursuant to an unlawful search and seizure. At the hearing on defendant’s motion, the court stated that it had reviewed the affidavit upon which the search warrant was issued, including the sealed portion of the affidavit, which contained the principal grounds for probable cause based on confidential information. The court found that there was a basis for the sealing, no reason to interview any witnesses or review any other information, and probable cause for the warrant’s issuance. It denied defendant’s motion to traverse and/or quash the search warrant, and subsequently issued a written order that was consistent with its ruling at the hearing.
At the subsequent preliminary hearing, the court determined that defendant and his wife were to be held to answer on counts one through three, and found a reasonable cause to believe them to be guilty of a misdemeanor violation of section 273a, subdivision (a).
The district attorney subsequently filed an information against defendants. Defendant entered a no contest plea to a violation of Health and Safety Code section 11378, admitted the allegations that he had possessed for sale 28.5 grams or more of methamphetamine or 57 grams or more of a substance containing methamphetamine, and admitted that he had served a single prior prison term within the meaning of section 667.5, subdivision (b). The court granted the prosecution’s motion to dismiss the other charges against defendant. While the record is not clear, the court also may have dismissed the charges against defendant’s wife. The court found defendant guilty of the remaining charges and sentenced him to four years in prison, which included the upper term of three years for the possession of methamphetamine for sale conviction, and one year for the prior prison term. Certain fines and fees were imposed.
Defendant filed a timely notice of appeal, and filed his related habeas corpus petition in February 2008.
DISCUSSION
Defendant argues that the trial court violated his rights under the Fourth, Sixth, and Fourteenth Amendments to the United States Constitution by failing to follow proper procedures in response to his motions. Conceding that his trial counsel failed to move before the trial court as needed to preserve his appellate claim, defendant also contends in his habeas corpus petition that his trial counsel rendered ineffective assistance, depriving him of his Sixth and Fourteenth Amendment rights. These arguments are incorrect.
Defendant’s challenge to the court’s ruling is not cognizable on appeal pursuant to section 1538.5, subdivision (m), because defendant did not move to suppress the evidence in the superior court. Defendant concedes the issue, stating that “despite the unification of the municipal and superior courts in this state, case law still requires a defendant to seek review of a suppression motion in the superior court in order to preserve the issue for appeal.” (See, e.g., People v. Richardson (2007) 156 Cal.App.4th 574, 582-583.) His appeal fails for this reason alone.
Section 1538, subdivision (m), states: “The proceedings provided for in this section, and Sections 871.5, 995, 1238, and 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him or her. 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 the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided 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.”
Defendant’s ineffective assistance of counsel argument also fails because, even if defendant’s argument were cognizable on appeal, the trial court did not abuse its discretion in denying defendant’s motion. “[A]ll or any part of a search warrant affidavit may be sealed if it is necessary to implement the [informant’s] privilege and protect the identity of a confidential informant.” (People v. Hobbs (1994) 7 Cal.4th 948, 971 (Hobbs).) Search warrant affidavits are “ ‘presumed truthful.’ ” (Id. at p. 966.) Accordingly, Hobbs adopted the rule that when an affidavit is challenged, “in camera review is not required ‘absent some showing that the presumptively valid warrant affidavit is questionable in some way.’ ” (Ibid., quoting with approval People v. Luttenberger (1990) 50 Cal.3d 1, 21.)
Hobbs also held that when, due to the sealing of any portion of a search warrant affidavit, the defendant cannot reasonably be expected to make the preliminary showing of questionability, “certain procedures should be followed in order to strike a fair balance between the People’s right to assert the informant’s privilege and the defendant’s discovery rights.” (Hobbs, supra, 7 Cal.4th at p. 972.) When a defendant properly moves to quash or traverse a search warrant, “the lower court should conduct an in camera hearing” pursuant to Penal Code section 915, subdivision (b), and People v. Luttenberger, supra, 50 Cal.3d 1. (Hobbs, at p. 972.) The court must first determine whether sufficient grounds exist for maintaining the confidentiality of the informant’s identity. The court must then determine whether the extent of the sealing is necessary to avoid revealing the informant’s identity. (Ibid.) “[T]he lower court may, in its discretion, find it necessary and appropriate to call and question the affiant, the informant, or any other witnesses whose testimony it deems necessary to rule upon the issues.” (Id. at p. 973, italics added.) If the trial court finds the affidavit 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.” (Id. at p. 974.) “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.” (Ibid.) Likewise, if the court finds the affidavit properly sealed and the defendant has moved to quash the warrant, the court should determine whether probable cause existed to support the warrant. (Id. at p. 975.) If the court determines probable cause and supported issuance of the warrant, it may report this conclusion to the defendant and deny the motion to traverse. (Ibid.) A reviewing court independently reviews the record and sealed documents. (Id. at pp. 976-977.)
Defendant moved for an in camera hearing, to traverse and/or quash the warrant, and to suppress the evidence seized. The court requested the affidavit in support of the search warrant, and heard the motion. At the hearing, the court stated, “I have obtained the sealed affidavit and I have reviewed it. Based on my review of the affidavit, there is probable cause to support issuance of the warrant.” Defense counsel then stated, “I guess the first issue is, from my reading of the case, is whether or not there’s sufficient grounds for maintaining the confidentiality and the sealing of the warrant; and then, obviously, if there is, then the court would examine it in camera and interview any witnesses, such as Mr. Furman [the affiant].” The court reiterated its conclusion that, based upon its reading of the sealed affidavit, there was a basis to seal the affidavit and for a finding of probable cause. The court also stated its conclusion that it had no need to interview witnesses based upon the information contained in the affidavit. Defense counsel asserted that the court had a duty to review the entire affidavit and, if the court concluded the defense was not entitled to any of it, was required to state this on the record. The court then stated, “I understand what my duty is. I’ve reviewed it. I found probable cause. I have no basis to give, at this point, you anything based on my reading of the affidavit.”
The court’s written order denying defendant’s motion stated that “Exhibit A” to the affidavit was properly sealed, that defendant was not entitled to any sealed portion of the affidavit, that the court did not need to interview witnesses or review other information to rule on the motion, that probable cause supported the issuance of the warrant; and that defendant’s motion to traverse and/or quash the warrant was denied.
The court’s procedures and findings were in keeping with the procedure outlined in Hobbs, supra, 7 Cal.4th 948. Its decision not to interview witnesses requires reversal only if it constitutes an abuse of discretion. (Id. at pp. 973, 976.) This court has independently reviewed the record and sealed materials, and finds that the trial court’s decision did not constitute such an abuse. The trial court correctly determined that there was probable cause for issuance of the warrant, and did not abuse its discretion in determining that further consideration of evidence or testimony was not necessary. If the portion of the affidavit that was sealed had been made public, the identity of a confidential source of information for law enforcement could well have been determined.
Defendant relies on People v. Galland (2004) 116 Cal.App.4th 489 (Galland), as well as Hobbs, supra, 7 Cal.4th 948, in arguing error occurred below. We have already concluded that the court below acted in accordance with Hobbs. Galland is easily distinguishable. There, the trial court never reviewed the sealed affidavit. (Galland, at p. 494.) In the present case, the court made clear that it had reviewed the sealed affidavit and considered all of the issues required of it in the course of its review, both before issuance of the warrant, and in the course of reviewing defendant’s motion. Therefore, Galland is inapposite.
Defendant points out that the court below never met with Furman, the affiant, face-to-face prior to issuance of the warrant. Instead, the record indicates that Furman “[a]ppeared before . . . [the court] via facsimile transmission with a contemporaneous telephone call.” Defendant argues that “[t]hus, the magistrate made no visual assessment of the truth and reliability of the affiant’s statements as they appeared in the affidavit. There was no video, audio, or written record of their conversation. Consequently, when the trial court made its assessment of the need for confidentiality, it had nothing except the written declaration contained in ‘Exhibit A,’ a document to which defendant has been denied access.”
Defendant further “submits that . . . the court did not conduct an in camera hearing as envisioned in Hobbs and Galland.” According to defendant, the court merely read the affidavit “without questioning it or the affiant or obtaining any explanation of its contents or the magistrate’s decision. . . . It accepted the affidavit in total without reservation and ruled that it must be sealed in its entirety. There is no indication that the court considered whether there were any portions of the affidavit which could be revealed. [Defendant] submits that the court’s reasoning, that it did not ‘feel a need to’ interview any witnesses based upon the information contained in the affidavit, did not comply with the mandate of Hobbs in that the court failed to examine the affidavit to determine whether complete confidentiality should be maintained or whether any portions of the affidavit should be released to [defendant].” Defendant further argues that, in light of the fact that his motions “were in effect discovery motions designed to protect his due process rights,” and, given the lack of information available to him about the affidavit that formed the basis for the search warrant, that he was “entitled to an in camera hearing.”
Defendant’s arguments lack merit. Defendant provides no legal authority to support his contention that the court should not have made its determinations based on a sworn affidavit by a law enforcement officer in issuing, or reviewing, the propriety of the search warrant; this is not surprising because the affidavit is presumed truthful. (Hobbs, supra, 7 Cal.4th at p. 966.) Furthermore, defendant does not cite any case law, nor are we aware of any, which requires a court to interview witnesses or affiants in the course of making its determinations. As stated in Hobbs, “The Legislature and the courts have also sanctioned the procedure of sealing portions of a search warrant affidavit that relate facts or information which, if disclosed in the public portion of the affidavit, will reveal or tend to reveal a confidential informant’s identity. The materials, usually sealed by the magistrate at the time the search warrant is signed and issued, are then made available for in camera review by the trial court in connection with any motion brought to challenge the warrant’s validity[.]” (Id. at p. 963.)
The record, as we have already indicated, shows that the court conducted what amounted to an in camera review of all portions of the affidavit and stated its findings for the record as required in Hobbs, supra, 7 Cal.4th 948. Notably, the court in its written order did not deny defendant’s motion for an in camera hearing. We conclude from the court’s statements and rulings that it in effect granted this motion to the extent that it conducted its own in camera review of the affidavit.
Defendant apparently argues that an in camera hearing was required, particularly in light of his claim that “his motions were in effect discovery motions designed to protect his due process rights.” While Hobbs refers to an “in camera hearing” (Hobbs, supra, 7 Cal.4th at p. 972), it is clear from its discussion that our Supreme Court envisioned that the trial court would have considerable discretion to conduct an in camera review of a search warrant affidavit as it saw fit based on the particular circumstances: “The precise standard of review to be applied at the in camera proceeding will depend in part on the nature of the motion or motions noticed by the defendant. As already noted, in each instance the court must initially determine whether the affidavit is properly sealed, i.e., whether valid grounds exist for maintaining the informant’s confidentiality, and whether the extent of the sealing is justified as necessary to avoid revealing his or her identity.” (Id. at p. 973.)
Indeed, in Hobbs itself, the Supreme Court was not troubled that the trial court, in reviewing the issuance of the search warrant in that case, “conducted its own in camera review of the search warrant application materials,” but “did not require the testimony of the confidential informant anew.” (Hobbs, supra, 7 Cal.4th at p. 976.) While the court noted approvingly that the trial court had reviewed the transcript of the magistrate’s and deputy district attorney’s examination of the informant at the time the search warrant was issued (ibid), nothing in the case suggests such an examination is required. Therefore, we conclude defendant’s arguments lack merit, and his habeas corpus petition must be denied.
DISPOSITION
The trial court’s ruling is affirmed. Defendant’s habeas corpus petition is denied.
We concur: Kline, P.J., Richman, J.