Chapter 65: Motion to Disclose Surveillance Site Location
Generally
Pursuant to the "official information" privilege, officers may refuse to disclose the location of a surveillance site.[1] But if they do, the defense may seek an order requiring disclosure on grounds that knowledge of the location is material to the issue of the defendant's guilt.
Procedure
Defense burden: The defense must demonstrate that there is a reasonable possibility that knowledge of the exact location of the surveillance site is material to the issue of guilt.[2]
Prosecution's burden: If the defense meets its burden, prosecutors must do either of the following:
Prove privilege applies: Prove in open court that disclosure of the surveillance site falls within the official information privilege.[3] In many cases, this will be self-evident.[4] See "Location is privileged," below.
Seek in camera hearing: If the prosecution declares that it cannot provide such proof in open court because it would reveal or tend to reveal the surveillance site, the prosecution will request an in camera hearing on the matter. The court will grant this request if it appears to the court that the issue cannot be resolved in open court without revealing the surveillance location.[5]
In camera hearing procedure
Persons present: In most cases, the only people present are the judge, investigating officer, prosecutor, and court reporter.
Hearing reported: The hearing must be reported by a court reporter.[6]
Defense questions: The defense may submit questions to be asked at the hearing.[7]
Requirements: Prosecutors must present testimony or other evidence that proves both of the following:
(1) Location is privileged: Prosecutors must provide the court with specific information as to the location of the site and why disclosure would be against the public interest.[8] It is ordinarily in the public interest to maintain the confidentiality of a surveillance site because disclosure would result in one or more of the following:
- Threaten the safety of the occupants or the owner of the surveillance site who might be subjected to retaliation.
- Threaten the safety of officers who may use the site in the future.
- Prevent further use of the site.[9]
(2) Location is not material: Prosecutors must also prove that knowledge of the surveillance site's exact location is not material to the issue of the defendant's guilt.[10] To prove this, they should address the following:
Observations immaterial to guilt: The location is not apt to be deemed material if the observations from the location were immaterial in establishing the defendant's guilt or innocence; e.g., defendant confessed to the crime, or the defendant was charged with straight possession of drugs that were found on his person.[11] Note that information will not automatically be deemed material merely because it might be relevant at trial.[12]
Observations accurate: The location is also less apt to be deemed material if prosecutors present circumstantial evidence that the officers' observations from the site were accurate.[13] In doing so, the following circumstances would be relevant:
Detailed observations: The officers were able to provide details concerning their observations from the site.[14]
Short distance: The surveillance site was not distant from the things, activities, or other evidence that was observed from it.[15]
No visual aids: It was unnecessary for the officers to utilize binoculars or other visual aids.[16]
No obstructions: There were no obstructions that would have impaired the officer's ability to see the activities.[17]
Good lighting and weather: Lighting and weather conditions would not have impaired the officers' observations.[18]
No others in the area: There was no one else in the area and, therefore, there was no reasonable possibility that the officers could had mistaken the defendant for the "real" perpetrator.[19]
Independent evidence of guilt: There was independent evidence that the officer's observations from the site were accurate.[20]
Ruling on the motion
Before ruling: Before ruling on the motion, the court should conduct a hearing in open court in which it should probe "the information's relevance to the defense, exploring with counsel the availability of other alternatives and, if necessary, hearing testimony voir dire."[21]
When the motion should be denied: The motion should be denied if the defendant's need for the information is outweighed by the need to preserve the confidentiality of the information.[22] The motion should not be granted on grounds that knowledge of the surveillance location is relevant to test the officer's ability to observe.[23]
When the motion should be granted: The motion should be granted if there is a reasonable possibility that disclosure of the location might result in the defendant's exoneration.
If motion is granted: Officers must either disclose the location or incur sanctions, usually suppression of testimony concerning observations made from the site.[24]
Notes
[1] CAL: Evid. Code§ 1040;
P v. Lewis (2009) 172 CA4 1426, 1431 ["the
location of a police surveillance post falls within the ambit of
the privilege granted by section 1040"];
In re Sergio M. (1993) 13 CA4 809, 813 ["The surveillance
location is information to which the privilege can apply."];
P v. Haider (1995) 34 CA4 661, 664 ["The government
has a privilege to refuse to disclose the exact location of a
surveillance site if the public interest in preserving the
confidentiality of that information outweighs the need for
disclosure."]; P v. Garza (1995) 32 CA4 148, 153;
P v. Walker (1991) 230 CA3 230, 235 ["a police
officer's surveillance location is entitled to a confidential
privilege"]; Torres v. Superior Court (2000)
80 CA4 867; P v. Montgomery (1988) 205 CA3 1011.
[2] CAL: In re Marcos B. (2013)
214 CA4 299, 308; P v. Garza (1995) 32 CA4 148, 153;
P v. Haider (1995) 34 CA4 661, 668 ["the test of
materiality ... is whether the nondisclosure might deprive
defendant of his or her due process right to a fair trial."];
P v. Walker (1991) 230 CA3 230, 236, 238;
P v. Montgomery (1988) 205 CA3 1011, 1021 ["The
correct procedure in these cases is for the court first to ask the
defendant to make a prima facie showing for disclosure."];
In re Sergio M. (1993) 13 CA4 809. 814.
[3] CAL: Torres v.
Superior Court (2000) 80 CA4 867, 873 [prosecution must
show "why the matter is privileged"].
[4] CAL: Torres v.
Superior Court (2000) 80 CA4 867, 873 ["There are, no
doubt, circumstances where this is self-evident, or nearly so."].
[5] CAL: Torres v.
Superior Court (2000) 80 CA4 867, 873 [prosecution must
declare that disclosure in open court "would compromise the
privilege"].
[6] CAL: Torres v.
Superior Court (2000) 80 CA4 867, 874; P v.
Montgomery (1988) 205 CA3 1011, 1021, fn.4.
[7] CAL: P v.
Montgomery (1988) 205 CA3 1011, 1021; Torres
v. Superior Court (2000) 80 CA4 867, 874;
In re Marcos B. (2013) 214 CA4 299, 308 ["Significantly,
Marcos was given no opportunity to propose questions"].
[8] CAL: In re Marcos B. (2013)
214 CA4 299, 312 ["the trial court must ensure that a police
agency's claim of privilege in connection with a surveillance
location is supported by evidence sufficient to demonstrate the
agency's need for continued secrecy of
that particular location outweighs the defendant's need for
it to be disclosed in the normal course of a criminal
prosecution."].
[9] CAL: In re Marcos B. (2013)
214 CA4 299, 312 [prosecution must "demonstrate the agency's need
for continued secrecy of that particular location outweighs the
defendant's need [for disclosure]"]; P v.
Haider (1995) 34 CA4 661, 666; P v.
Walker (1991) 230 CA3 230, 235-36; P v.
Montgomery (1988) 205 CA3 1011, 1021 ["If a surveillance
location is of continuing usefulness, and if revealing its
location will endanger people, these facts strongly support
maintaining the privilege."].
[10] CAL: P v.
Haider (1995) 34 CA4 661, 668-69; P v.
Garza (1995) 32 CA4 148, 153-54, 155-56.
[11] CAL: P v.
Haider (1995) 34 CA4 661, 667 ["the purchaser was detained
and was observed discarding a piece of rock cocaine as the
officers approached"]; In re Sergio M. (1993) 13 CA4 809.
814-15 ["the money found on the minor was consistent with his
having sold at least one package of marijuana"]; P v.
Walker (1991) 230 CA3 230, 238 [defendant "admitted
contact" with the buyer]; P v. Montgomery (1988) 205
CA3 1011, 1022 ["there was no other direct evidence of the sale;
the purchaser had not been detained, and the transaction had not
been photographed or otherwise memorialized"]; P v.
Garza (1995) 32 CA4 148, 155.
[12] CAL: P v.
Garza (1995) 32 CA4 148,153 ["the test of materiality is
not simple relevance; it is whether the nondisclosure might
deprive defendant of his or her due process right to a fair
trial"]; P v. Lewis (2009) 172 CA4 1426,
1435.
[13] CAL: P v.
Lewis (2009) 172 CA4 1426, 1438 [disclosure not required if
"the accuracy of the testifying officer's testimony about the
surveillance observations is unquestioned, or at least is
sufficiently corroborated by independent evidence such that there
is no realistic possibility that disclosing the surveillance
location would create a reasonable doubt in the minds of a
reasonable jury about the officer's veracity."].
[14] CAL: In re Marcos B. (2013)
214 CA4 299, 315 [court cites cases in which there was an
"independent basis to conclude the observing officer was not only
able to view a drug transaction, but also able to
identify the participants accurately"]; P v.
Lewis (2009) 172 CA4 1426, 1438 ["the trial court properly
permitted appellant's trial counsel to examine [the officer]
freely with respect to all aspects of his observations, with the
sole exception of the exact location from which they were taken"];
P v. Haider (1995) 34 CA4 661, 668 ["the record of
the in camera hearing and the trial established that
Officer Starbird had an unobstructed view of the drug transaction
with high-powered binoculars on a sunny day"]; P v.
Garza (1995) 32 CA4 148, 155 ["[The surveilling officer]
broadcast to the other officers detailed descriptions of the
[suspects] and their activities."];
In re Sergio M. (1993) 13 CA4 809, 814 ["[The
officer] testified he was within 100 yards of the minor, and was
using 35-power binoculars. He had an unobstructed view of the
minor both while at the fence and while at the Blazer. It was
clear and sunny that afternoon. Nobody else in the vicinity was
dressed like the minor."]; P v. Walker (1991) 230
CA3 230, 238 ["it is difficult to imagine what more defendant
could have gained by knowing the officer's exact location given
the precise and extensive information that was brought out by
defense counsel's cross-examination"].
[15] CAL: P v.
Walker (1991) 230 CA3 230, 238 [15 feet]; P v.
Montgomery (1988) 205 CA3 1011, 1014 [25 to 35 yards];
Hines v. Superior Court (1988) 203 CA3 1231,
1233 [50 yards]; P v. Garza (1995) 32 CA4 148, 151
[40-50 feet]; P v. Haider (1995) 34 CA4 661, 666
[100-120 feet]; In re Sergio M. (1993) 13 CA4 809, 811
[within 100 yards].
[16] CAL: P v.
Haider (1995) 34 CA4 661, 669 [unobstructed view with
high-powered binoculars]; In re Sergio M. (1993) 13 CA4
809. 814 [unobstructed view with 35-power binoculars];
P v. Walker (1991) 230 CA3 230, 238 [unobstructed
view, no binoculars].
[17] CAL: P v.
Haider (1995) 34 CA4 661, 666 [officer's view "was
completely unobstructed"]; In re Sergio M. (1993) 13 CA4
809. 814 ["unobstructed view"]; P v. Walker (1991)
230 CA3 230, 238 ["The officer had an unobstructed view"].
[18] CAL: P v.
Haider (1995) 34 CA4 661, 667 ["sunny day"];
In re Sergio M. (1993) 13 CA4 809. 814 ["clear and sunny"];
P v. Walker (1991) 230 CA3 230, 238 ["good lighting
conditions"].
[19] CAL: In re Sergio M. (1993)
13 CA4 809. 814 ["Nobody else in the vicinity was dressed like the
minor."].
[20] CAL: In re Marcos B. (2013)
214 CA4 299, 315 [court cites cases in which there was an
"independent basis to conclude the observing officer was not only
able to view a drug transaction, but also able to
identify the participants accurately"].
[21] QUOTE FROM: Torres
v. Superior Court (2000) 80 CA4 867, 874.
CAL: P v. Montgomery (1988) 205 CA3 1011,
1021.
[22] CAL: Torres v.
Superior Court (2000) 80 CA4 867, 872; P v.
Garza (1995) 32 CA4 148, 154; P v.
Walker (1991) 230 CA3 230, 236 ["a governmental privilege
will be upheld where the necessity for confidentiality outweighs
the necessity for disclosure in the interest of justice"].
[23] CAL: P v.
Haider (1995) 34 CA4 661, 669.
[24] CAL: Hines v.
Superior Court (1988) 203 CA3 1231, 1236 ["the appropriate
order here should have been for the magistrate to strike the
testimony of Officer Weir's observations"]; P v.
Montgomery (1988) 205 CA3 1011, 1022 ["The purpose of the
defense learning the surveillance location was to test the only
observation of the sale itself. This was particularly material
because there was no other direct evidence of the sale; the
purchaser had not been detained, and the transaction had not been
photographed or otherwise memorialized."].