A motion to unseal a warrant is when a search warrant was issued on the basis of a sealed document. Typically, such is used to purportedly protect a confidential informant. This sealing procedure in California is called a Hobbs sealing request.
Twenty-six years the California Supreme Court explained facial and subfacial challenges to a partially sealed warrant as follows:
“In Luttenberger the affiant of a search warrant affidavit represented that a confidential informant was reliable, but gave no further details about the informant’s background or reliability. Defendant did not assert that the affidavit was facially insufficient, nor did he seek disclosure of the informant’s identity. Instead, he sought to mount a subfacial challenge, i.e., attack the underlying veracity of statements made on the face of the search warrant application. (See Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667, 98 S.Ct. 2674] [Franks].) Prior to the preliminary hearing, defendant had sought to invoke the procedures established in People v. Rivas (1985) 170 Cal.App.3d 312 [216 Cal.Rptr. 477] (Rivas), by requesting an in camera review of information (e.g., police records and other documents) relating to the informant’s background and reliability. Rivas authorizes such discovery provided that the documents are first screened in camera by the lower court to protect the confidentiality of the informant’s identity. (Id. at p. 322.) The magistrate in Luttenberger denied defendant’s request for in camera review; the trial court thereafter granted defendant’s motion to dismiss the information due to the denial of that motion. The Court of Appeal affirmed the trial court’s order dismissing the information. We reversed.
Our opinion in Luttenberger reaffirmed that a criminal defendant’s right to discovery is based on the fundamental proposition that the accused is entitled to a fair trial and the opportunity to present an intelligent defense in light of all relevant and reasonably accessible information. (Luttenberger, supra, 50 Cal.3d at p. 17.) We rejected the People’s suggestion that the Franks requirement, i.e., that a ‘substantial preliminary showing’ first be made in order to entitle the defendant to an evidentiary hearing on the veracity of statements made in the search warrant affidavit, must be imposed on the Rivas discovery process. Observing that Franks did not involve a confidential informant nor address how a defendant would go about gathering information for a ‘substantial preliminary showing’ of material misrepresentation where a confidential informant was involved, we concluded that the high court in Franks could not within reason have intended its standard to apply and effectively bar challenges to search warrant affidavits based on confidential informants’ tips. (Luttenberger, supra, 50 Cal.3d at p. 18.)
On the other hand, we disagreed with that aspect of the holding in Rivas that required a defendant merely to assert his need for discovery in conclusory terms. We determined that to afford a defendant the right to in camera inspection and discovery of police records on a pro forma request would ‘impose an unjustifiable burden on our trial courts and an unwarranted invasion of police files.’ (Luttenberger, supra, 50 Cal.3d at p. 20.) We therefore concluded that some preliminary showing is required; the defendant’s motion must describe the information being sought with ‘ ‘some degree of specificity’ ’ in order to preclude authorization of a “ ‘ “fishing expedition.” ’ ” (Id. at pp. 20-21.) We recognized that even where the defendant demonstrates good cause for in camera review and discovery, the right to discovery is not absolute; the trial court “ ‘retains wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest.’ [Citation.]” (Id. at p. 21.) Because ‘the warrant affidavit is presumed truthful,’ in camera review is not required ‘absent some showing that the presumptively valid warrant affidavit is questionable in some way.’ (Ibid., italics in original.)
We further explained in Luttenberger that utilization of the in camera review and discovery procedure approved in Rivas does not conflict with the holding in Franks. Characterizing the state’s interest in protecting the identity of the confidential informant as ‘strong and legitimate,’ and the defendant’s right to mount a subfacial challenge to the veracity of statements made in a search warrant affidavit as ‘limited but viable,’ we approved the in camera review and discovery procedure as an effective screening device that ‘protect[s] the government’s confidentiality interests while safeguarding the defendant’s rights and the integrity of the warrant issuing process. (See 1 LaFave [Search and Seizure] (2d ed. 1987) § 3.3(g), pp. 709-711.)’ (Luttenberger, supra, 50 Cal.3d at p. 19.)”
(People v. Hobbs (1994) 7 Cal.4th 948, 965-966 [30 Cal.Rptr.2d 651, 873 P.2d 1246].) “[A]n asserted state evidentiary privilege is not a viable excuse for violating federal constitutional rights.” (Whitaker v. Garcetti (C.D. Cal. 2003) 291 F.Supp.2d 1132, at 1152 fn. 42.) The first step regarding the sealing of the confidential portion of the warrant is for this Court to determine whether sufficient grounds exist for maintaining the confidentiality of the informant’s identity. (Hobbs, supra, 7 Cal.4th 948.) The reasons must amount to “exceptional circumstances.” (People v. Castillo (1992) 80 N.Y. 2d 578, 580.) The Court’s role is to both determine that the People still have an ongoing justification for withholding critical information and test the strength and validity of the assumptions on which it is founded. If the informant is still being used as a law enforcement resource, the People should be called on to identify the pending investigations and what future use they can establish for having the informant. The contents of a communication will never be held to be protected by the informant’s privilege where its disclosure will not tend to reveal the identity of an informer. (Rovario v. United States (1957) 333 U.S. 53, 60.) Finally, the Court shoulder consider whether the need for nondisclosure can be satisfied by a protective order that would allow defense counsel to see the affidavit while shielding it from his client. Any suppression motion thereafter would be filed under seal. If the Court determines that the risk of exposing the informant’s identity remains great enough that the affidavit should not be unsealed, the Court must then determine whether the extent of the sealing is necessary to avoid revealing the informant’s identity. The Hobbs Court suggested the prosecutor could be ordered to “prepare a written affidavit for disclosure to the defense narrating those facts upon which probable cause is based which do not reveal the identity of the informant.” (Hobbs, supra, 7 Cal.App.4th at 972, fn. 7.) If the Court then determines the affidavit needs to remain sealed, it must then examine the affidavit in camera for possible inconsistencies or insufficiencies regarding the showing of probable cause. In undertaking this task, the Court must necessarily obtain and review relevant police reports and other information regarding the informant and the informant’s reliability. It must also inform the prosecution of any other materials or witnesses that it requires for its examination. (Hobbs, supra, 7 Cal.App.4th at 973.) The Court should review any prior testimony of the informant, the informant’s arrest record, any plea bargains, promises of leniency or other inducements, and any cases where the informant’s informant has proved to be false. (Ibid.) The Court should also review the personnel records of the affiant and the informant’s law enforcement handler, Pitchess v. Superior Court (1974) 11 Cal.3d 531, to assure itself that there are no issues relating to the reliability or trustworthiness of the officers involved with the informant or with the representations in the affidavit.