Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NA075473. Richard R. Romero, Judge.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
Following the trial court’s denial of his motion to quash and traverse the search warrant that authorized a search of the residence where he lived with his mother, defendant Michael Goopio pleaded nolo contendere to possession of methamphetamine for sale and possession of marijuana for sale (Health & Saf. Code, §§ 11378, 11359). The trial court imposed the middle term of two years on each count, suspended execution of sentence, and placed defendant on probation for 36 months, subject to various terms and conditions. Defendant appeals from the denial of his suppression motion (motion to quash and traverse). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts of the Crimes
Because there was no trial, we take our facts from the preliminary hearing transcript, and confine our summary to the crimes to which defendant pled nolo contendere.
On August 22, 2007, around 5:00 a.m., Long Beach Police Officer Timothy Everts and other officers executed a search warrant at a Long Beach apartment. Defendant was in bed in one of the bedrooms. In that room, officers found a baggie of marijuana, a digital scale, a book about growing marijuana, and an article about a methamphetamine seizure along the United States/Mexican border. In another bedroom, occupied by defendant’s mother, officers found two digital scales and a plastic bindle of pills. In a hallway closet between the two bedrooms, the officers discovered another scale, a baggie containing 4.66 grams of methamphetamine, nine baggies containing marijuana, and a pay-and-owe sheet with defendant’s and his mother’s names on it. In a statement to the police, defendant said that he sold methamphetamine to his friends.
The Motion to Quash and Traverse
The search warrant authorizing the search of defendant’s residence was obtained based on an affidavit that was partially sealed. Defendant moved to quash and traverse the warrant and to suppress the evidence seized. He argued, inter alia, that the sealed portion of the affidavit had been improperly left in the custody of the Long Beach police and not the court clerk, and that an in camera review of the sealed portion must be conducted to determine if it established probable cause for the warrant and adequate cause for nighttime service.
At the hearing on the motion, Esperanza Colbert, a court administrator in charge of administrative services, testified that the search warrant was filed with the court clerk, but without the sealed portion of the affidavit. The issuing magistrate had ordered that the sealed portion remain in the custody of the Long Beach Police Department and not be made part of the public record until further order of the court.
Officer Everts, who with other officers executed the warrant, was the affiant in support of the warrant. He testified that at his request, the issuing magistrate sealed a portion of the affidavit. Officer Everts kept the sealed portion in a safe in the narcotics department. He brought it to court, opened it on the record, and identified it as the sealed portion of the affidavit he had presented to the issuing magistrate. The two pages of the sealed portion were initialed by the magistrate. The trial court, being familiar with the signature of the issuing magistrate, recognized the magistrate’s signature on the sealing order that was attached to the envelope that the contained the sealed portion of the affidavit.
The trial court ruled that the sealed portion of the affidavit had improperly been left in police custody. However, the reasons for the sealing still existed, and therefore the court kept the sealing order in place, but took custody of the sealed pages. The court later conducted an in camera review of the sealed portions and concluded that the warrant was supported by probable cause and that good cause existed for nighttime service.
DISCUSSION
Motion to Quash and Traverse
Defendant contends, and respondent agrees, that under People v. Hobbs (1994) 7 Cal.4th 948, 973-975 (Hobbs), we must review the sealed affidavit and the in camera proceeding to determine whether the trial court properly denied defendant’s motion to quash and traverse the search warrant.
“[A]ll or any part of a search warrant affidavit may be sealed if necessary to implement the privilege [under Evid. Code, § 1041] and protect the identity of a confidential informant.” (Hobbs, supra, 7 Cal.4th at p. 971.) As recently summarized in People v. Galland (2008) 45 Cal.4th 354, 364 (Galland), the relevant procedure described by Hobbs is as follows: “When a defendant seeks to quash or traverse a warrant where a portion of the supporting affidavit has been sealed, the relevant materials are to be made available for in camera review by the trial court. (Hobbs, supra, 7 Cal.4th at p. 963; see Evid. Code, § 915, subd. (b).) The court should determine first whether there are sufficient grounds for maintaining the confidentiality of the informant’s identity. If so, the court should then determine whether the sealing of the affidavit (or any portion thereof) ‘is necessary to avoid revealing the informant’s identity.’ (Hobbs, supra, 7 Cal.4th at p. 972.) Once the affidavit is found to have been properly sealed, 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’ (if the defendant has moved to quash the warrant) or ‘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’ (if the defendant has moved to traverse the warrant). (Id. at pp. 975, 974.) The prosecutor may be present at the in camera hearing; the defendant and defense counsel are to be excluded unless the prosecutor elects to waive any objection to their presence. However, defense counsel should be afforded the opportunity to submit written questions, reasonable in length, which shall be asked by the trial judge of any witness called to testify at the proceeding. (Id. at p. 973.)” (People v. Galland, supra, 45 Cal.4th at p. 364.)
Here, we have independently reviewed the in camera record, and conclude that the trial court properly determined: (1) that adequate grounds existed to keep the identity of the confidential informant secret; (2) that sealing a portion of the search warrant affidavit was necessary to avoid revealing the informant’s identity; (3) that probable cause existed to support the warrant; and (4) that sufficient cause for nighttime service existed. Therefore, we conclude that the court properly denied the motion to quash and traverse.
Permitting the Police to Take Custody of the Sealed Portion of the Affidavit
Defendant contends that permitting Officer Everts to take custody of the sealed portion of the affidavit denied defendant of due process and requires reversal. Subsequent to the filing of the defendant’s opening brief on appeal, the California Supreme Court decided Galland, supra, 45 Cal.4th 354. There, the court held that a sealed affidavit in support of a search warrant may be kept by law enforcement officials only if a specific, multi-tiered showing is made. Because the required showing was not made here, the magistrate erred in permitting Officer Everts to retain custody of the sealed portion of the affidavit.
The required showing is: “(1) that disclosure of the information would impair further investigation of criminal conduct or endanger the safety of the confidential informant or the informant’s family; (2) that security procedures at the court clerk’s office governing a sealed search warrant affidavit are inadequate to protect the affidavit against disclosure to unauthorized persons; (3) that security procedures at the law enforcement agency or other entity are sufficient to protect the affidavit against disclosure to unauthorized persons; (4) that the law enforcement agency or other entity has procedures to ensure that the affidavit is retained for 10 years after final disposition of the noncapital case, permanently in a capital case, or until further order of the court (see Gov. Code, § 68152, subd. (j)(18)), so as to protect the defendant’s right to meaningful judicial review; and (5) that the magistrate has made a sufficient record of the documents that were reviewed, including the sealed materials, so as to permit identification of the original sealed affidavit in future proceedings or to permit reconstruction of the affidavit, if necessary.” (Galland, supra, 45 Cal.4th at pp. 359-360.)
However, the court in Galland rejected the notion that allowing law enforcement to retain custody of a sealed affidavit necessarily deprives the defendant of the opportunity to challenge the warrant. In Galland, the magistrate had left the sealed affidavit in the custody of the police, who had then lost it. The Supreme Court disagreed with “the Court of Appeal [which held] that the magistrate’s error, and the subsequent loss of the original sealed search warrant affidavit, rendered it impossible to safeguard defendant’s right to meaningful appellate review. Although the original affidavit has been lost, the superior court determined that the five-page unsigned document submitted by the district attorney’s office in its place was otherwise identical to the affidavit the superior court had reviewed prior to denying defendant’s motion to suppress, and that factual finding is supported by substantial evidence. Moreover, subsequent to the Court of Appeal’s decision, the Orange County Superior Court discovered a copy of the original sealed search warrant affidavit in its files.” (Id. at p. 360.) The court remanded the case to the trial court to settle the record concerning the missing original sealed affidavit. (Id. at p. 373.)
In the instant case, Officer Everts produced the original sealed portion of the affidavit in court and identified it as such. The pages were initialed by the issuing magistrate. The trial court recognized the magistrate’s signature on the sealing order on the outside of the envelope in which the sealed portion of the affidavit was kept. Thus, the record shows that the sealed portion of the affidavit reviewed by the trial court in camera, and reviewed again by this court on appeal, is the same one initially reviewed by the magistrate in issuing the warrant. Defendant’s ability to challenge the validity of the search warrant and to obtain effective appellate review has not been violated.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.