Opinion
G036790
5-31-2007
THE PEOPLE, Plaintiff and Respondent, v. RAY ALAN CROUSE, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Ray Alan Crouse appeals from a judgment granting him probation after imposition of sentence was suspended, following his guilty plea to transportation of methamphetamine and possession of that drug for the purpose of sale. (See Health & Saf. Code, §§ 11378, subd. (a), 11379, subd. (a).) On appeal, he contends this appellate court must review the sealed transcripts of the two in camera hearings conducted as part of his motions for discovery, for disclosure of informants and to suppress the evidence seized pursuant to the search warrant—part of which was sealed—and determine if the denial of those motions was proper. He also contends his constitutional rights were violated when the trial court barred his counsel from attending the in camera hearings. We disagree and affirm.
FACTS
Ray Alan Crouse was arrested on February 17, 2005, after a search of his vehicle pursuant to a warrant uncovered 14 grams of methamphetamine, plastic baggies, and $1,067 in cash.
Crouse filed a formal discovery motion, a motion to dismiss, and a motion to disclose the identity of the confidential informant whose information provided the probable cause for the search warrant. Pursuant to those motions, the trial court held an in camera hearing, from which the defense was excluded. The hearing involved a review of the sealed search warrant affidavit. After that review, the trial court unsealed a portion of the affidavit. A second in camera hearing took place a week later, during which the trial court queried the confidential informant and affiant. The defense was likewise barred from this hearing; moreover, the defense was also not provided with copies of the sealed portion of the search warrant affidavit for purposes of appeal.
Crouse appeals on the basis of lack of probable cause to issue the search warrant, and the trial courts refusal to permit his attorney to attend the in camera hearings to review the search warrant affidavit and to question the informant and affiant.
DISCUSSION
Both parties request that this court review the sealed transcripts of the in camera hearings. Accordingly, we have reviewed those transcripts, and our independent study of them reveals that the trial judge did not err in finding that the warrant was supported by probable cause.
Thus, we are left to determine whether the trial court abused its discretion in refusing to permit Crouses attorney to attend the in camera hearings. In short, the answer is no. The informants privilege that was protected by use of the in camera hearings is recognized in Evidence Code sections 1041: "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 [to a police officer] purporting to disclose a violation of a law. . . 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: [¶] . . . [¶] (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 . . . . 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." (Emphasis added.)
Additionally, Evidence Code section 1042, subdivision (b), states: "[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." (Emphasis added.)
Crouse asks us to suspend this statutory privilege by urging us to employ a balancing test as used in the Ninth Circuit for federal prosecutions. (See United States v. Anderson (9th Cir. 1974) 509 F.2d 724, 729-730.) Anderson, however, does not compel the outcome that Crouse seeks. That case stands for the idea that when the confidential informants testimony goes to the merits of the defense—not merely to the legality of the search—then there is an increased danger to a fair trial. People v. Hobbs (1994) 7 Cal.4th 948 stands for the same proposition: "In contrast to the situation where the defendant is seeking to discover whether a confidential informant is a material witness on the issue of guilt or innocence, where the defendant merely seeks to discover the informants identity in connection with a challenge to the legality of a search based on information furnished by the informant, a critical distinction is drawn in the case law between searches conducted pursuant to warrant and warrantless searches. It has long been the rule in California that the identity of an informant who has supplied probable cause for the issuance of a search warrant need not be disclosed where such disclosure is sought merely to aid in attacking probable cause." (Id. at p. 959.) Compare this rule to that expressed in Anderson, supra, 509 F.2d 724, at page 730, which upheld exclusion from an in camera hearing even as to a warrantless search. Thus, given that the trial judge is given a wide berth even as to warrantless searches, and even when the testimony goes to the merits of the defense, we can find no reason to invalidate the judgment arising from the trial courts searching and careful review during the in camera hearings in this case.
Our review of Crouses briefs and of the record, including the sealed transcripts, reveals no reason to believe that the informant could have provided testimony relevant to Crouses defense on the merits. Rather, his testimony related solely to the probable cause necessary for the issuance of the warrant. Since disclosure of the underlying circumstances of the informants information would likely have revealed the informants identity, the court properly considered the governments interest in the anonymity of the informant. The court accommodated the competing interests of the defendant for a fair trial and the statutory provision of in camera hearing closed to the defense. We cannot say that the accommodation reached was an abuse of discretion.
Nor can we say that the procedure infringed the defendants rights under the Fifth and Sixth Amendments. Moreover, having reviewed the transcript of the in camera proceedings, the trial courts finding that the informants conclusions were based upon sufficiently reliable information was not erroneous.
Even if we were to employ the Anderson balancing test as Crouse requests—which we do not—we would be compelled to the same result. Anderson sets forth an abuse of discretion standard for reviewing the trial judges decision to exclude the defense from the in camera hearing. Crouse does not set forth any argument that would purport to overcome such a standard, and our independent review of the record and the sealed transcripts reveals none.
DISPOSITION
The judgment of the trial court is affirmed.
We concur:
BEDSWORTH, J.
MOORE, J. --------------- Notes: Crouse makes numerous references to due process rights, fair and impartial trials, and the right to effective assistance of counsel, but he fails to provide any specific argument as to how the trial court violated or denied him these rights in this case. Additionally, Crouse cites to United States v. Garcia-Salas (9th Cir. 2005) 126 Fed.3d 811, which does him more harm than good. That case held that the trial judge did not abuse his discretion in denying the defense entry into an in camera hearing, because Garcia-Salas "presented neither concrete factual allegations nor a firm theory demonstrating a need for the discovery of information related to the confidential informant. `The "mere suspicion that information will prove helpful is insufficient to require disclosure."" (Id. at p. 812.) Crouse similarly argues that "[e]xcluding defense counsel from the in camera hearings in this case adversely implicated the above-noted constitutional rights and thus was error because the exclusion offends these principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental." We are at a loss to see how such an general argument overcomes the deferential abuse-of-discretion standard.