Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA056461, Robert P. O’Neill, Judge.
Roderick W. Leonard, 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, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Morgan David Morris appeals from the judgment entered following a jury trial that resulted in his conviction for possession of a controlled substance, methamphetamine. Imposition of sentence was suspended and Morris was placed on probation for three years pursuant to Proposition 36.
The evidence against Morris was discovered during a police search pursuant to a warrant. The warrant was supported in part by information provided by one or more confidential informants. A one-page portion of the affidavit was sealed to protect the identity of the informant(s). Morris brought a motion to quash and traverse the warrant, which was denied. Because the trial court did not retain the sealed, one-page portion of the affidavit in the court file, Morris asserts that meaningful appellate review of his motion to quash and traverse the warrant and suppress evidence is impossible. Therefore, he asserts, the trial court’s denial of his motions must be reversed and the evidence suppressed, necessitating reversal of his conviction. Alternatively, Morris requests that we review the record to determine whether the trial court properly denied his motion to quash and traverse the warrant.
We conclude that, although the trial court improperly allowed a police officer to retain the sealed, one-page portion of the affidavit, the trial court was able to satisfactorily reconstruct and settle the record at a noticed hearing. Our review of the reconstructed record, including the in camera proceedings and the sealed portion of the search warrant, satisfy us that the affidavit was properly sealed, probable cause was established, and the trial court did not err by denying the motion. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
At 7:15 p.m. on May 13, 2005, approximately 12 Los Angeles Police Department (L.A.P.D.) officers and detectives executed a search warrant on a house and detached, converted garage located on Pleasant View Avenue in the City of Venice. The warrant was obtained based in part on information obtained from one or more confidential informants. After knocking and announcing their presence at the garage door and receiving no response, officers pried open the door. Morris was discovered in the garage. He was seated on a couch, naked, with a baggie containing.90 grams of a substance containing methamphetamine nearby.
2. Procedure.
Trial was by jury. Morris was convicted of possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The trial court suspended sentence and placed Morris on probation for three years, pursuant to Proposition 36 (Pen. Code, § 1210.1). It imposed a restitution fine, an assessment fee, a laboratory analysis fee and related penalty assessment, and a court security assessment. Morris appeals.
DISCUSSION
1. The motion to quash and traverse the search warrant.
As noted, the warrant authorizing the May 13, 2005 search was obtained, based in part, on an affidavit that was partially sealed to protect the identity of one or more confidential informants. (People v. Hobbs (1994) 7 Cal.4th 948.) Prior to trial, Morris filed a motion to quash and traverse the warrant and supporting affidavit. Morris requested in camera review of the sealed portion of the affidavit and sought to suppress evidence discovered in the search.
Morris’s motion related the following information, which was contained in the unsealed portion of the warrant and affidavit. Officer Stacey Witty of the L.A.P.D. stated her belief that narcotics and related items would be found at the subject residence. Witty’s belief was based on information provided by a confidential informant. Based on information she had previously received, Witty took the informant to the Pleasant View residence. The informant knocked at the door and asked the man who opened it for $20 worth of narcotics. The man stated, “ ‘Oh, he isn’t here right now, I don’t know when he is getting back.’ ” The informant smelled a chemical odor so strong that the informant felt nauseated. Officer Witty took the informant to a Home Depot store, where the informant smelled various chemicals used in manufacturing methamphetamine. The informant identified denatured alcohol as the odor emanating from the Pleasant View residence. Using police resources, Officer Witty determined that the Pleasant View residence was being rented by one Jamie McCoy, who was on felony probation for narcotics violations.
On May 13, 2005, the magistrate issued a search warrant for the Pleasant View residence, including any garages, attached or detached. The warrant authorized a search for various drugs and related items. The magistrate ordered a one-page portion of the affidavit sealed, because it tended to reveal the identity of a confidential informant.
On January 26, 2006, the trial court considered Morris’s motion to quash and traverse the warrant. The court reviewed the sealed affidavit in camera and interviewed Officer Witty, using questions supplied by appellant. The transcript of the hearing was sealed. On February 1, 2006, in open court, the trial court stated that it had conducted the in camera review of the search warrant, including the sealed portion; that there were sufficient grounds to continue to keep the sealed portion sealed; and there was sufficient probable cause for issuance of the warrant. Accordingly, the court denied the motion to quash and traverse. The matter proceeded to trial, resulting in Morris’s conviction.
2. Augmentation of the record on appeal.
On January 2, 2007, Morris’s appellate counsel requested by letter that the Los Angeles County Superior Court Clerk certify and transmit to this court the sealed affidavit and the search warrant. On January 5, 2007, the superior court clerk certified that the superior court file did not contain the affidavit for the search warrant or the search warrant.
In his opening brief, Morris contended that, pursuant to the then-recent decision in People v. Galland (2006) 146 Cal.App.4th 277, review granted April 18, 2007, S149890, the judgment must be reversed and all evidence discovered in the search suppressed, because the absence of the warrant and affidavit from the superior court file made meaningful appellate review impossible. Alternatively, Morris requested that we independently review the sealed portion of the record to determine, as far as possible, whether the trial court properly denied the motion to quash and traverse the warrant.
Our subsequent review of the January 26, 2006 in camera hearing suggested that the sealed portion of the affidavit might have been retained by Officer Witty. We ordered the superior court to determine whether the warrant, affidavit, and any attachments were returned to police custody and, if so, to retrieve and authenticate the documents and transmit a sealed copy to this court. (See People v. Martinez (2005) 132 Cal.App.4th 233, 239.) The augmented record initially transmitted to us by the superior court, however, did not contain the sealed portion of the affidavit, nor were any of the transmitted materials authenticated or certified.
On June 17, 2008, Morris filed a motion to strike the augmented record and requesting clarification regarding the nature of the documents transmitted. We denied the motion.
3. The Galland decision and remand for reconstruction and settlement of the record.
People v. Galland (2008) 45 Cal.4th 354, subsequently clarified the appropriate procedure to be followed when a sealed warrant affidavit is missing from the record. (Id. at p. 373.) In Galland, police obtained a warrant to search the defendant’s home, vehicle, and person for methamphetamine and evidence of methamphetamine sales. After the warrant was executed, a portion of the search warrant affidavit was ordered sealed to protect the identity of one or more confidential informants. The magistrate ordered that the sealed portion of the affidavit be secured in the police department property room. When the defendant moved to quash and traverse the warrant and suppress evidence, the sealed portion of the affidavit was brought to court so the trial judge could rule on the motion. The motion was denied, and the original sealed portion of the warrant was returned to police custody. (Id. at p. 359.)
On appeal, it was discovered that the police department had purged its files of the original sealed portion of the affidavit. The Court of Appeal concluded that the Penal Code required that the magistrate retain the entire warrant affidavit. The court reasoned that the remaining record was inadequate to permit meaningful appellate review, and that the motions to quash and traverse the warrant, and suppress evidence, should have been granted. (People v. Galland, supra, 45 Cal.4th at p. 359.)
The California Supreme Court reversed the appellate court’s decision. (People v. Galland, supra, 45 Cal.4th at p. 360.) It concluded that, while it was error for the magistrate to direct that the original sealed portion of the affidavit be retained by the police department (id. at p. 359), the error, and the subsequent loss of the original sealed warrant affidavit, did not make it impossible to safeguard the defendant’s right to meaningful appellate review, because the trial court was able to determine that an unsigned copy of the warrant affidavit was the same document it had reviewed. (Id. at p. 360.) Galland explained that, “[w]hen the Court of Appeal realized that the sealed warrant affidavit was missing from the record, the proper procedure would have been to remand the case to the superior court with directions to hold a hearing to reconstruct or settle the record as to the missing search warrant affidavit and augment the record accordingly.” (Id. at p. 373.) Galland expressed concern that the parties be afforded an opportunity to participate in the record-settlement process. (Ibid.)
Following the procedure mandated by Galland, we remanded the instant matter to the superior court with directions to hold a noticed hearing to reconstruct or settle the record as to the missing, original sealed portion of the warrant affidavit, as well as the remainder of the warrant and affidavit, and to augment the record accordingly. (People v. Galland, supra, 45 Cal.4th at p. 373; see also People v. Mooc (2001) 26 Cal.4th 1216, 1231; People v. Martinez, supra, 132 Cal.App.4th at p. 239; Cal. Rules of Court, rules 8.155, 8.340.) In particular, we directed the superior court to determine what documents the magistrate reviewed when issuing the warrant and what documents the trial court reviewed when considering appellant’s motion to quash and traverse, and to augment the record with those documents. We directed the superior court to certify the reconstructed or settled record and transmit a copy to this court.
On February 23, 2009, the trial court conducted the hearing as directed, giving the parties notice and the opportunity to participate in the record-settlement process. The trial court reviewed copies of the unsealed portion of the search warrant and affidavit, the motion to quash and traverse, the transcript of the January 26, 2006 in camera hearing, and the transcript of the February 1, 2006 hearing at which it denied the motion to quash and traverse. The trial court certified that the warrant and affidavit were the documents that it reviewed in ruling on Morris’s motion. The court confirmed that the original sealed portion of the warrant had been returned to police custody in 2005.
Morris was represented by counsel, but was not present at the hearing. A warrant had been issued for Morris, but it was outstanding at the time of the hearing.
In a portion of the hearing conducted in camera, Officer Witty testified under oath regarding the sealed portion of the affidavit. She explained that the original sealed page of the affidavit could not be located. Because the document had been electronically saved, however, she was able to provide the court with a copy of the page, which she averred was identical to the original. The trial court examined the document and confirmed that it was the same document it had reviewed. Officer Witty also testified that the warrant affidavit reviewed by the trial court was the same one that was reviewed by the magistrate.
At the time of the 2009 hearing to reconstruct the record, Officer Witty had married and changed her last name. To avoid confusion, we refer to her as Officer Witty throughout this opinion.
The record transmitted to us by the trial court after the reconstruction hearing includes, inter alia, a copy of the unsealed portion of the original search warrant and affidavit; a copy of the request to seal page 5 of the affidavit; the return to the warrant; and, in a separate, sealed envelope, the sealed, one-page portion of the affidavit.
4. It was error to allow the L.A.P.D. to retain the sealed portion of the affidavit without a sufficient showing of necessity; nonetheless, Morris’s right to meaningful review has not been compromised.
As noted, People v. Galland, supra, 45 Cal.4th 354, concluded that it was error in that case to allow a police department to retain the sealed portion of a search warrant affidavit. (Id. at p. 360.) The court reasoned that the determination of who should retain custody of a sealed search warrant affidavit requires weighing the public’s interest in preventing disclosure of a confidential informant’s identity against the defendant’s interest in maintaining the integrity of the record and preserving that record for further judicial review. (Id. at p. 367.) Balancing those interests, Galland concluded that ordinarily, a sealed search warrant affidavit, like other search warrant affidavits, should be “part of the court record that is maintained at the court. Such a rule minimizes the potential for tampering with the record and eliminates the need for time-consuming and cumbersome record-authentication procedures.” (Id. at p. 368.) On the other hand, Galland recognized that where “the record shows that court procedures are inadequate to protect the informant’s identity—and that the law enforcement agency can protect the informant’s identity and the integrity of the sealed affidavit—there is nothing in the Penal Code or in the Constitution to bar the law enforcement agency from retaining custody of the original sealed affidavit.” (Id. at pp. 368-369.) Therefore, “a sealed search warrant affidavit may be retained by the law enforcement agency upon a showing (1) that disclosure of the information would impair further investigation of criminal conduct or endanger the safety of the confidential informant; (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 non capital case, permanently in a capital case, or until further order of the court [citation], 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.” (Id. at p. 368.)
Here, unsurprisingly, there was no showing of the aforementioned five criteria, given that Galland had not been decided when the superior court entrusted the sealed portion of the warrant affidavit to Officer Witty. Galland compels the conclusion that the L.A.P.D.’s retention of the original, sealed portion of the affidavit under these circumstances was error. (People v. Galland, supra, 45 Cal.4th at pp. 359, 369.)
However, as in Galland, the superior court’s misstep does not compel the conclusion that Morris’s right to meaningful appellate review has been compromised. “The absence of an affidavit to support an executed search warrant... does not invalidate the warrant when ‘other evidence may be presented to establish the fact that an affidavit was presented, as well as its contents.’ [Citations.]” (People v. Galland, supra, 45 Cal.4th at p. 370.) Reversal is required only when “ ‘ “critical evidence or a substantial part of a [record] is irretrievably lost or destroyed, and there is no alternative way to provide an adequate record so that the appellate court may pass upon the question sought to be raised.” ’ [Citations.]” (Ibid.) We review the superior court’s findings regarding the reconstruction of the original search warrant affidavit under a deferential substantial evidence standard. (Ibid.) “We then independently determine whether the record, as reconstructed and settled by the trial court, is adequate to allow the appeal to proceed meaningfully. [Citations.]” (Ibid.)
There is no genuine dispute that the unsealed portion of the warrant now contained in the appellate record is an authentic copy of the warrant affidavit reviewed by the magistrate in 2005 and the trial court in 2006. The unsealed portion of the warrant affidavit was described in detail in Morris’s 2005 motion to quash and traverse. The document described in Morris’s motion is clearly the same document contained in the reconstructed record. Moreover, Officer Witty testified that the documents were the same, and the trial court so certified. Substantial evidence therefore supports the trial court’s conclusion that the unsealed portions of the warrant now contained in the record are copies of the original it, and the magistrate, reviewed. (People v. Galland, supra, 45 Cal.4th at p. 370.)
The same is true in regard to the sealed, one-page portion of the affidavit. In Galland, the original affidavit was destroyed by the police department. (People v. Galland, supra, 45 Cal.4that pp. 359, 362.) The district attorney’s office provided to the superior court an unsigned facsimile of the entire warrant affidavit. The trial court determined that the facsimile was in substance the same as the affidavit the court had earlier reviewed in camera. (Id. at pp. 363, 371.) Galland concluded that “[t]he superior court’s own recollection constitutes substantial evidence that the content of the two documents was the same.” (Id. at p. 371.) Further, a detective’s recollection that the affidavit was the same one the magistrate reviewed provided sufficient evidence on that point. (Ibid.)
Here, the original one-page sealed portion of the affidavit was lost. However, Officer Witty provided to the court a copy of the page, which had been electronically stored and retrieved. Officer Witty testified, and the trial court certified, that this document was the same one that the trial court had reviewed at the January 26, 2006 in camera hearing on the motion to quash and traverse the warrant. The trial court’s recollection, and the officer’s testimony, credited by the court, provided substantial evidence that the two documents were the same. (People v. Galland, supra, 45 Cal.4th at p. 371.) Like the detective’s testimony in Galland, Officer Witty’s testimony during the in camera hearing provided substantial evidence that the one-page portion of the warrant affidavit reviewed during the 2009 in camera hearing was identical in substance to the document reviewed by the magistrate in 2005. (Id. at pp. 371-372.)
In a letter brief filed after transmittal of the augmented record, Morris requested that we remand for a second hearing. He complained, inter alia, that at the record settlement hearing he was not represented by his original trial counsel, but by a different appointed attorney. While we agree that, in general, it is preferable to have the original trial counsel present, here we discern no prejudice to Morris. The key issue at the reconstruction and settlement hearing was whether the sealed portion of the warrant affidavit could be located or reconstructed. As trial counsel had never seen that document, her presence or absence could not have had a bearing on that issue. Accordingly, we denied Morris’s request.
5. The trial court properly denied the motion to quash and traverse the warrant.
Having determined that the reconstructed record is sufficient to allow meaningful review, as Morris requests we review the warrant affidavit, including the sealed portion, and the in camera proceedings to determine whether the trial court properly denied Morris’s motion to quash and traverse the search warrant.
All or any part of a search warrant affidavit may be sealed if necessary to protect the identity of a confidential informant. (Evid. Code, § 1041; People v. Hobbs, supra, 7 Cal.4th at p. 971.) “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.” (People v. Galland, supra, 45 Cal.4th at p. 364; People v. Hobbs, supra, 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.’ [Citation.] 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). [Citation.]” (People v. Galland, supra, at p. 364; People v. Hobbs, supra, at pp. 972-975.) “ ‘ “The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” [Citation.]’ [Citations.]” (People v. Thuss (2003) 107 Cal.App.4th 221, 235.) When reviewing the denial of a motion to suppress, we must uphold the trial court’s express or implied factual findings if supported by substantial evidence, but use our independent judgment to determine whether the facts found establish probable cause. (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.) We may not order the suppression of evidence unless federal constitutional standards require us to do so. (Ibid.)
We have independently reviewed the sealed and public portions of the warrant affidavit, as well as the transcripts of the camera proceedings. We conclude the trial court properly determined that information contained in the sealed portion of the affidavit would have tended to reveal the identity of the confidential informant or informants, and sealing a portion of the search warrant affidavit was therefore necessary. Viewing the totality of the circumstances, the affidavit established a fair probability that evidence of a crime or contraband would be found at the Pleasant View premises, and probable cause thus existed to support issuance of the warrant. Nothing suggests that the warrant affidavit contained material misrepresentations or omissions. The trial court properly denied Morris’s motion to quash and traverse the warrant and suppress the fruits of the search. (See, e.g., People v. Martinez, supra, 132 Cal.App.4th at pp. 241-242.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.