13. Unseal Affidavit (Hitch Motion)
The following sample motion to unseal affidavit must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.
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TO THE COURT AND THE DISTRICT ATTORNEY: PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, the defendant will move that the Court unseal the affidavit used to support the search warrant used in this case. An in camera hearing is requested pursuant to People v. Hobbs (1994) 7 Cal. 4th 948, to rule on the propriety of the concealing portions of the affidavit from the defendant.
This motion will be based on this notice of motion and memorandum of points and authorities served and filed herewith, on such supplemental memorandum of points and authorities as may hereafter be filed with the court or stated orally at the conclusion of the hearing on the motion, on all the papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of the motion.
Dated:
___________________
By Bill Slocumb,
Attorney for Dean Dogg
DECLARATION IN SUPPORT OF MOTION TO UNSEAL THE AFFIDAVIT
I, Bill Slocumb, Attorney for Defendant, declare:
1. According to the affidavit in support of the search warrant in this case (attached), officers received information from a witness only identified as “X” that several people were involved in trafficking methamphetamine, including Defendant.
2. The officer begins by referring to X in the singular, but then changes to the plural form, thus indicating that X actually refers to more than one person: “X told me they know a white male subject… they told me they recently have seen [Defendant] in possession of a large amount of methamphetamine.”
3. The affidavit goes on to explain that it is actually Bart Baddy who “holds the methamphetamine at his residence…”
4. These informants are alleged to have had knowledge as to who was in the home, who owned the home, and who was selling narcotics.
5. Defendant contends that another person was responsible for the drug sales (possibly one of the informants or Bart) and that Defendant had no connection with the narcotics.
6. A reasonable possibility exists that one or more of the informants, whose true number is unknown, was also an eyewitness to the crimes alleged and could give evidence on the issue of guilt or innocence in this action that would result in the exoneration of the Defendant.
7. Significantly, the informants each appear to know that “Bart” possessed the methamphetamine. This gives rise to an obvious third party culpability defense, and these informants can each give exculpatory testimony.
8. At a minimum, the informants should be able to testify that Bart owned the residence and possessed the methamphetamine that was found therein.
9. Further, the affiant makes conclusory statements concerning the reliability of the informants, but it is clear that X is representative of multiple people, some of whom may not be reliable and/or may have themselves been involved in the sales of methamphetamine. The affidavit is unclear as to how many people are represented by X, why the officer believes one or more of them is reliable, and what portion of the information he received from each person represented by X.
10. The affidavit contains an attachment, B, which has been sealed and withheld from Defendant. Attachment B may contain:
a. Information related to Bart, his ownership of the house, and/or his possession of methamphetamine. This information would be exculpatory as to Defendant.
b. Information related to the reliability or lack thereof of informants represented by X. This too would be exculpatory to Defendant in that if the informants are reliable, their statements as to Bart owning the residence and possessing methamphetamine would tend to exonerate Defendant. If the informants are not reliable, the warrant was issued without probable cause.
c. False statements of material facts or material omissions that could negate probable cause.
d. Other information that is otherwise exculpatory and discovery is required under Brady.
Dated:
_________________
By Bill Slocumb,
Attorney for Dave Douglass
POINTS, AUTHORITIES, AND ARGUMENT
WHERE AN AFFIDAVIT IN SUPPORT OF A WARRANT HAS BEEN SEALED, AN IN CAMERA HEARING MUST BE HELD BY THE COURT
In Franks v. Delaware (1978) 438 U.S. 154, 155-157, the United States Supreme Court held that a defendant may challenge the veracity of a facially valid warrant affidavit on a substantial preliminary showing that (1) the affiant made statements that were deliberately false or in reckless disregard of the truth; and (2) the affidavit’s remaining content is insufficient to justify a finding of probable cause. The Fourth Amendment requires that a hearing be held at the defendant’s request, where such a showing is made. The rule enunciated in Franks is, moreover, applicable to affidavits marred by omissions of fact (U.S. v. Lefkowitz (9th Cir 1980) 618 F. 2nd 1313, 1317).
However, our courts have recognized that when the defendant moves to traverse or quash a warrant on the grounds of material false statements or omissions in the application and the entire affidavit supporting it is sealed, the defendant may not be able to make even the minimal showing required by People v. Luttenberger (1990) 50 Cal. 3rd 1. Our Supreme Court has devised a procedure to address this issue. In this situation, the court is required to conduct an in camera hearing and failure to do so is reversible error (People v. Galland (2004) 116 Cal. App. 4th 489, 490-491).
No preliminary showing is required by the defendant to be entitled to an in camera hearing. By filing the motion, the court is required to treat the matter as if the defendant had made the requisite preliminary showing called for in Luttenberger (People v. Hobbs (1994) 7 Cal. 4th 948, 972).
THE COURT SHOULD FOLLOW A THREE PART PROCEDURE FOR THE IN CAMERA HEARING
In People v. Hobbs (1994) 7 Cal. 4th 948, 974-975 the court set forth the procedure for the in camera hearing. The prosecutor is present at the hearing and the defense excluded, unless the prosecutor consents to their presence. At the hearing the court should inform the prosecution what materials and witnesses it requires. The prosecution may present testimony. After examining the warrant and any supporting material or testimony, the court must determine the following:
First, whether the affidavit is properly sealed, that is, whether sufficient grounds exist for maintaining the confidentiality of the informant’s identity and whether a portion of the sealed information may be disclosed without compromising the informant’s identity.
Second, if the court finds that the affidavit, or a major part of it, has been properly sealed, the court proceeds to the next step, which requires the court to determine whether “there is a reasonable probability the defendant would prevail” on his suppression motion. The “precise standard of review” applied by the court at this stage of the Hobbs procedure depends on whether the defendant has noticed a motion to quash the warrant or to traverse it.
Third, if the affidavit is found to be properly sealed and the defendant has filed a motion to traverse, the court must determine whether the defendant’s allegations of material misrepresentations or omissions are supported by the record under the standards set out in Franks v. Delaware (1978) 438 U.S. 154, 155-156, which is that the affidavit supporting the search warrant contained inaccurate statements or omissions from the affidavit that rendered it substantially misleading, meaning that there was a substantial possibility that the misrepresentations would have altered a reasonable magistrate’s probable cause determination.
The instant motion goes to the first step, with the expectation that a motion to traverse (steps two and three) may be brought based on the contents of the sealed affidavit, if such is disclosed.
Since the defendant is completely ignorant of all critical portions of the affidavit (and, as a result, the defense is unable to specify what materials the court should reveal in camera), the court must take it upon itself both to examine the affidavit for possible inconsistencies or insufficiencies regarding the showing of probable cause, and inform the prosecution of the materials or witnesses it requires. The materials will invariably include such items as relevant police reports and other information regarding the informant and the informant’s reliability (People v. Hobbs (1994) 7 Cal. 4th 948, 973).
Furthermore because defendant’s access to the “essence of the affidavit” has been eliminated, the court may, in its discretion, find it necessary and appropriate to call and question the affiant, the informant, or any other witness whose testimony it deems necessary to rule upon the issues. Where feasible, the court may also, in its discretion, order the tape recording or videotaping of all or any portion of the in camera proceeding (People v. Hobbs (1994) 7 Cal. 4th 948).