Chapter 66: Motion to Reveal Sealed Affidavit (Hobbs)

Generally

The problem: A judge may order all or part of a search warrant affidavit (or wiretap affidavit[1]) sealed on grounds it contained information that would reveal, or tend to reveal, the identity of either a confidential informant or "official information." See Chapter 35
Search Warrant Special Procedures
(Sealing Orders). But this creates a problem for the defendant because he cannot know what information was included in a sealed affidavit and may, therefore, be unable to effectively challenge the existence of probable cause by means of a Motion to Quash, or challenge the accuracy of the information in the affidavit by means of a Motion to Traverse. See Chapter 62
Motions to Suppress Evidence (Motions to Quash and Motions to Traverse)

The solution: To remedy this, the California Supreme Court in People v. Hobbs developed a procedure that can be utilized when an affidavit has been sealed and the defendant has filed a Motion to Quash or a Motion to Traverse. Specifically, the defendant may ask the judge to examine the sealed portion to determine whether it contains information that is reasonably likely to result in the granting of the motion. To request such a review, the defense will file a Hobbs motion.

Step One: What parts are privileged? The court will first determine whether the information in the sealed portion of the affidavit was properly sealed; i.e., whether it revealed, or tended to reveal, (1) information about an informant as defined in Evidence Code§ 1041, or (2) "official information" as defined in Evidence Code§ 1040.[2]

All sealed information was privileged: If the court determines that all of the sealed information was privileged, it will proceed to Step Two, below.[3]

No sealed information was privileged: If the court determines that none of the sealed information was privileged it will order that prosecutors either disclose the entire affidavit to the defense or "suffer the entry of an adverse order" on the motion.[4]
If the prosecution elects to disclose, the court will allow the defendant "to amend or renew his suppression motions in light of the further disclosures."[5]

Some sealed information was privileged: If the court finds that only some of the sealed information was privileged, it will do the following:

The unprivileged information: The court will order the prosecution to provide the defense with a redacted version of the affidavit in which all the unprivileged information had been added. If the prosecution refuses to do so, the court will order that it "suffer the entry of an adverse order" on the motion.[6]

The privileged information: The court will determine if the privileged information was "significant to defendant's ability" to proceed on its Motion to Quash or Motion to Traverse.[7]
In making this determination, the court should consider whether the defendant remains "ignorant of critical portions of the affidavit, or, stated another way, whether his or her access to the essence of the affidavit is curtailed, such that his or her right to raise a pretrial challenge to the warrant's validity is impaired."[8]

Privileged information was significant: If the court rules that the privileged information was significant, it will proceed to Step Two.[9]

Privileged information is not significant: If the court finds that the privileged information was not significant to the defendant's cause, it will deny the Hobbs motion and the case will proceed to the suppression hearing; i.e., Step Two is not applicable.[10]

Step Two: Likelihood that defendant would prevail: The court must determine whether there is a "reasonable probability that defendant would prevail" on his suppression motion if the sealed information was disclosed to him.[11]

Court's analysis: The court's analysis will depend on the nature of the motion:

Motion to Quash: If the defense filed a Motion to Quash, the court will conduct a critical examination of the sealed and unsealed portions of the affidavit to determine whether they established probable cause.[12]

Motion to Traverse: If the defense filed a Motion to Traverse, the judge will conduct a critical examination of the sealed and unsealed information in the affidavit, looking for "possible inconsistencies or insufficiencies regarding the showing of probable cause."[13]

Court procedure: To make these determinations, it will be necessary to conduct an in camera hearing.[14]

"In camera" defined: See Chapter 63
Motions to Disclose Informant's Identity
(In Camera Hearing Procedure).

Defense not present: Neither the defendant nor his attorney may appear at the in camera hearing, absent a waiver by the prosecution.[15] The defense may, however, submit written questions.[16]

Court may require materials: The court may require that prosecutors produce materials that it believes are necessary to conduct the examination; e.g., police reports, informant's rap sheet, and other information about the informant and his reliability.[17]

Witnesses: The court my require that prosecutors present witnesses, such as "the affiant, the informant, or any other witness whose testimony [the judge] deems necessary to rule upon the issues."[18] If witnesses are called, their testimony may be tape recorded or videotaped.[19]

If an informant will testify: If an informant will testify at the hearing, "precautions must be taken to protect his or her identity, including the holding of the in camera hearing at a place other than the courthouse if deemed necessary to guarantee the informant's anonymity."[20]

Hearing results

If no reasonable probability: If the court determines there is no reasonable probability that the defendant would prevail on the motion, it will deny the request for disclosure.

If reasonable probability: The judge will give prosecutors the following choice:

Disclose: Disclose the relevant sealed materials, in which case the hearing on the Motion to Quash or Motion to Traverse will proceed.

Refuse to disclose: Refuse to disclose the relevant sealed materials, in which case the prosecution will "suffer the entry of an adverse order" on the motion.[21]