Sealing a portion of the search warrant affidavit

California Courts of Appeal Reports

PEOPLE v. GALLAND, G034189 (Cal.App. 12-28-2006) THE
PEOPLE, Plaintiff and Respondent, v. ANTHONY ANDREW
GALLAND, Defendant and Appellant. G034189 Court of Appeal
of California, Fourth District, Division Three. Filed
December 28, 2006

Appeal from a judgment of the Superior Court of Orange
County, No. 01CF2350, Robert R. Fitzgerald, Judge. (Retired
judge of the Orange Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.)
Reversed and remanded.

Jackie Menaster, under appointment by the Court of Appeal,
for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief
Assistant Attorney General, Gary W. Schons, Assistant
Attorney General, Gil Gonzalez and Lynne G. McGinnis,
Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MOORE, J.

In August 2002, Anthony Andrew Galland pleaded guilty to
drug charges after the trial court denied his motions to
quash and traverse a search warrant and to suppress
evidence seized during the execution of that warrant. In
People v. Galland (2004) 116 Cal.App.4th 489 (Galland),
this court reversed the trial court’s order denying these
motions and conditionally reversed the judgment to allow the
court to conduct in camera review proceedings in accordance
with the guidelines set forth in People v. Hobbs (1994) 7
Cal.4th 948 (Hobbs). On June 29, 2004, the trial court
conducted an in camera review of the warrant in accordance
with this court’s decision and again denied Galland’s
motions to quash and traverse a search warrant and to
suppress evidence.

In Galland’s appeal from the trial court’s second order
denying his motions to quash and traverse a search warrant
and to suppress evidence, he contends the court did not
follow the procedure set forth in Hobbs, supra, 7 Cal.4th
948, erroneously determined the police officers who served
the warrant complied with statutory knock-notice
requirements (Pen. Code, § 1531), and failed to
produce a correct abstract of judgment. (All further
statutory references are to the Penal Code unless otherwise
noted.) Galland further argues the trial court denied him
protection from unreasonable search and seizure as
guaranteed by the Fourth and Fourteenth Amendments to the
federal Constitution, article I, section 13 of the
California Constitution, and California’s statutory scheme
governing the issuance and execution of search warrants.
For reasons we discuss more fully below, this last
contention has merit.

The appellate record discloses the original search warrant
affidavit was somehow divided into three sections. One
section was ordered sealed and filed with the superior
court when the police officer affiant filed the return. The
second section was ordered sealed and retained by this
police officer for storage at the Buena Park Police
Department, which the department later destroyed. The third
was discovered in a separate sealed envelope during
proceedings in the trial court held pursuant to this
court’s order directing the superior court to authenticate,
if possible, a facsimile purported to be the now destroyed
second section. The record fails to disclose the origin of
the separate sealed envelope.

From the issuance of the search warrant to its review and
authentification of documents purportedly supporting the
issuance of the warrant, the trial court failed to preserve
a record adequate for appellate review. We have no
confidence in the authenticity of the warrant affidavit
included in the appellate record, or that the documents
comprising the affidavit are the same documents the issuing
magistrate actually reviewed. The trial court’s failure to
maintain a record adequate for appellate review violated
state and federal Constitutional provisions, state
statutory provisions governing search warrants, and state
statutory provisions governing the retention and
destruction of court documents. For reasons discussed below,
the court’s failure to perform this basic obligation
deprived Galland of due process of law. Consequently, the
judgment is reversed.

I

FACTS

The facts of the underlying conviction are not relevant to
the issues on appeal. The relevant facts are in the
procedural history of the case and what has transpired
since our earlier opinion.

On August 9, 2001, Judge Daniel B. McNerney issued a search
warrant for Galland’s home, vehicle, and person. The
warrant included Detective David Hankins’ affidavit of
probable cause and was executed during the evening hours of
August 9. On August 17, Hankins appeared before Judge James
P. Marion with the original search warrant, warrant
affidavit, return, and property report. In another
affidavit, Hankins requested an order sealing these
documents to protect the identity of a confidential
informant, relying on the holding in Hobbs, supra, 7 Cal.4th
948, and that the sealed portion of the warrant be secured
in the Buena Park Police Department property room. Judge
Marion signed the order.

Hankins filed the sealed search warrant, return, and
property report with the clerk of the superior court, but
he included only part of the original warrant affidavit.
Hankins retained a portion of the sealed original warrant
affidavit and transported this sealed document to the Buena
Park Police Department for storage in its property room.
The partial search warrant affidavit filed with the court
contained Hankins` training and experience, but did not
state the basis for his belief a search of Galland’s home,
person, and property would reveal evidence of a crime. The
portion Hankins retained held the facts necessary to
establish probable cause for the search. Sometime later, for
reasons not disclosed in the record, the court ordered the
search warrant, partial affidavit, return and property
report in its possession to be unsealed and available to
Galland’s attorney.

In June 2002, Galland filed motions to quash and traverse
the search warrant and for the suppression of evidence
seized as a result of the search. He challenged the
validity of the warrant on numerous grounds, including the
fact that Hankins had failed to file the complete, original
affidavit or a copy in the court file. Galland requested
the trial court conduct an in camera review of entire
warrant affidavit to determine whether it contained
probable cause and if revealing any of the sealed affidavit
Hankins retained could be released without jeopardizing the
identity of the confidential informant. The prosecution
opposed the motion, arguing no legal authority required the
issuing magistrate to retain the original warrant affidavit
while the search warrant was executed and, in the
alternative, that suppression of the evidence would not be
the proper remedy assuming a violation of proper procedure.

On August 2, 2002, Judge Robert R. Fitzgerald held an
evidentiary hearing on Galland’s motions. Galland orally
renewed his request for an in camera review of the sealed
portion of the warrant affidavit. Judge Fitzgerald did not
rule on defendant’s request for in camera review, but
proceeded to conduct an evidentiary hearing on a
knock-notice issue raised by the defense. At the conclusion
of the evidentiary hearing, Judge Fitzgerald ruled as
follows: “Discrepancy in the testimony is resolved in favor
of law enforcement as opposed to a convicted criminal
defendant in the same case. [¶] In that regard the
motion in its entirety, unless there’s other argument shall
be denied. And that concludes our 1538.5.” Defense counsel
again requested an in camera review of the warrant
affidavit, or a continuance to file the appropriate
discovery motion. This request was denied. Galland pleaded
guilty 17 days later and filed an appeal from the court’s
order denying his motions to quash and traverse the warrant
and to suppress evidence, and his request to file a
discovery motion.

In Galland, supra, 116 Cal.App.4th 489, we held Judge
Fitzgerald’s denial of Galland’s request for an in camera
review of the entire warrant affidavit violated the
procedure set forth in Hobbs, supra, 7 Cal.4th 948.
(Galland, supra, 116 Cal.App.4th at pp. 492-494.) At the
time, we noted a portion of the warrant affidavit, the
portion Hankins retained, was not part of the appellate
record and from this omission we concluded Judge Fitzgerald
had not reviewed the document. (Id. at p. 494.) This court
reversed the trial court’s orders denying Galland’s motions
and conditionally reversed the judgment to allow the trial
court to conduct an in camera review of the search warrant
affidavit and to prepare a proper record of those
proceedings. (Ibid.)

On June 29, 2004, Judge Fitzgerald conducted a hearing
pursuant to this court’s decision. By stipulation the
parties agreed Hankins, now an investigator for the
District Attorney’s Office, had Judge Marion’s order
sealing a portion of the search warrant affidavit and
directing Hankins to retain this document in the Buena Park
Police Department property room. They further agreed
Hankins would testify if called as a witness that he had
transported a portion of the original warrant affidavit for
storage in the Buena Park Police Department property room,
had not altered or changed the original, and had brought the
original affidavit to court for the June 29 hearing. The
court accepted the parties’ stipulation and proceeded in
chambers with Hankins. During the in camera hearing, Judge
Fitzgerald ordered copies of the original documents to be
sealed and placed in the court file and the original sealed
documents returned “to the law enforcement agent.”

On the record, Judge Fitzgerald stated that based on his in
camera review of the documents, a “conversation” with
Hankins, and Hankins assurance that he had provided “the
entirety of the package,” the reasons for sealing the
warrant affidavit remained and the defense was not entitled
to any further information. Judge Fitzgerald again denied
defendant’s motion to quash and traverse the search warrant.
Nothing in the record demonstrates Judge Fitzgerald
separately considered defendant’s motions for discovery or
to suppress evidence. Pursuant to trial court order, a
sealed reporter’s transcript of the in camera review was
prepared. However, the clerk’s transcript for the date of
the in camera review did not include any sealed documents.

On July 8, 2004, defendant filed a timely notice of appeal
from the trial court’s denial of his section 1538.5 motion
to suppress evidence. On February 28, 2005, this court
received an affidavit from the clerk of the appellate
division of the superior court. The clerk averred that the
sealed portion of the search warrant, the part Hankins
retained for storage at the Buena Park Police Department,
was not in the court’s file. The clerk further stated a
sergeant from the Buena Park Police Department confirmed
that the document had been “purged/destroyed.” The Buena
Park Police Department confirmed this information by letter
dated March 2, 2005.

On March 9, 2004, we received a five-page facsimile from
the Orange County District Attorney’s Office, which
included what appeared to be an unsigned version of the
entire warrant affidavit. Because the document included
information that might identify a confidential informant,
we ordered the five-page facsimile sealed. A copy of the
sealed facsimile was transmitted back to the superior court
with directions. Specifically, we ordered the superior
court to review the copy of the five-page facsimile we
received on March 9 and determine if the five-page
facsimile was the same document it reviewed in camera on
June 29, 2004. If the superior court authenticated the
five-page facsimile, we further ordered it to augment the
appellate record and prepare a supplemental clerk’s
transcript.

On April 12, 2005, Judge Fitzgerald reviewed the five-page
facsimile pursuant to our order. According to the clerk’s
transcript of the April 12 hearing, Judge Fitzgerald
received an affidavit in support of a search warrant and
found it was the same affidavit he had reviewed on June 29,
2004. He also discovered “another piece of paper that was
in another sealed envelope.” Without disclosing its
contents, we are able to state this newly discovered piece
of paper contains evidence relevant to the probable cause
determination and likely to reveal the identity of a
confidential informant if made public. Judge Fitzgerald
then determined the newly discovered piece of paper had
been inadvertently omitted from the superior court file,
although he did not explain the origin of this document.
Ultimately, Judge Fitzgerald ordered the court’s file
augmented with a supplemental clerk’s transcript,
“including this courts find [sic] and the sealed affidavit.”
We received the sealed clerk’s transcript on April 14,
2005. There is no reporter’s transcript for April 12, 2005.

II

DISCUSSION

Galland argues the trial court failed to comply with the
Hobbs procedure on remand from this court, thus violating
his state and federal Constitutional rights to due process
and effective assistance of counsel. Additionally, he
contends the trial court erroneously found the officers who
executed the warrant complied with section 1531’s
knock-notice provisions. Galland also asserts the decision
in Hobbs, supra, 7 Cal.4th 948 is flawed in one respect. In
Hobbs, the California Supreme Court held the entire search
warrant could be ordered sealed upon a sufficient showing
by the affiant that such an order was necessary to protect
the identity of a confidential informant. Galland contends
sealing the entire search warrant violates state and
federal Constitutional provisions protecting his right to
due process and to counsel. He also contends the search
warrant issued in this case violates state and federal
Constitutional provisions and California’s statutory scheme
governing the issuance and execution of search warrants
because neither the issuing magistrate, nor the magistrate
who accepted the return and ordered the warrant sealed,
retained the original search warrant affidavit.

The Attorney General argues the trial court complied with
the procedure set forth in Hobbs, supra, 7 Cal.4th 948, but
even if it did not strictly comply with the Hobbs
procedure, the appellate record is adequate for our
independent review of the search warrant. In addition, the
Attorney General asserts the police officers executing the
warrant substantially complied with the statutory
requirements. Further, the Attorney General contends,
assuming the police officers did not substantially comply
with section 1531, the violation of this statute does not
necessarily trigger application of the exclusionary rule.
The Attorney General also asserts Galland’s attack on the
holding in Hobbs, supra, 7 Cal.4th 948, is barred by
principles of stare decisis, relying on Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-461.
Finally, the Attorney General challenges Galland’s
interpretation of state and federal Constitutional
provisions addressing search warrants and California’s
statutory scheme governing search warrants, contending the
magistrates’ failure to maintain the original warrant
affidavit in the court file does not violate any particular
constitutional right or statutory language, nor does it
invalidate an otherwise facially valid search warrant.

We conclude the practice of allowing the affiant officer to
retain a portion of a the original search warrant
affidavit, a procedure initiated by Hankins and authorized
by the magistrate, deprived Galland of an adequate
appellate record and violated his right to due process of
law. We find no authority for this practice in California’s
statutory scheme governing search warrants or the
applicable state and federal Constitutional provisions.
This case is an unprecedented example of what happens when
the trial court ignores its duty to maintain inviolate the
record of court proceedings in search warrant cases and a
call for the court to assume this duty in the interests of
justice.

Our state and federal Constitutions contain provisions for
the protection of citizens from unreasonable search and
seizure. The United States Constitution requires warrants
to be issued “upon probable cause, supported by [o]ath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” (U.S.
Const. 4th Amend.) The California Constitution contains a
nearly identical clause. (Cal. Const., art. I, §
13.) Section 1523 et seq. contains the statutory scheme
governing the issuance and execution of search warrants,
providing specific procedures designed to protect the
Constitutional right.

The prosecution relied on the common law privilege to
refuse to disclose the identity of a confidential
informant, codified in Evidence Code section 1041,
subdivision (a), to request an order sealing not only the
part of the warrant affidavit containing references likely
to reveal a confidential informant’s identity, but also to
expand this protection to sealing the entire warrant.
Evidence Code section 1042, subdivision (d), provides for
in camera review of prosecution evidence that “would tend
to disclose or which discloses the identity of the informant
to aid the court in its determination whether there is a
reasonable possibility that nondisclosure might deprive the
defendant of a fair trial.” Pursuant to decisional law, the
government may submit sealed or partially sealed warrant
affidavits and obtain in camera review of these documents
when a criminal defendant challenges the validity of a
search warrant. (Hobbs, supra, 7 Cal.4th at pp. 962-963,
971.) As the Hobbs court stated, “It would be anomalous to
conclude that a trial court, expressly deemed capable by
our Legislature of making an in camera evaluation of a
confidential informant’s materiality as a witness to
defendant’s guilt or innocence on any claim of privilege
under [Evidence Code] section 1040 et seq. (see §
1042, subd. (d)), could not likewise competently evaluate
the necessity for sealing all or part of a search warrant
affidavit on such a claim of privilege, take whatever
further actions may be necessary to ensure full public
disclosure of the remainder of the affidavit, and review
all the relevant materials in camera to determine whether
they will support defendant’s challenges to the search
warrant.” (Hobbs, supra, 7 Cal.4th at p. 971.)

Court’s have routinely relied on the in camera procedure
described in the Hobbs decision to handle documents in
criminal cases involving the use of confidential
informants. (People v. Estrada (2003) 105 Cal.App.4th 783,
790-792.) But the Hobbs court did not address the situation
with which we are faced. We must determine whether a
criminal defendant’s constitutional or statutory rights
preclude the affiant and his or her law enforcement agency
from serving as the repository for court documents. We
believe it does — the right to due process of law
prevents a law enforcement agency, or its officers, from
retaining court documents simply because the agency prefers
to maintain custody of documents relating to the identity
of a confidential informant.

“The issuance of a warrant is a judicial act based on facts
found by the magistrate. [Citation.]” (Dunn v. Municipal
Court (1963) 220 Cal.App.2d 858, 869.) From the moment a
magistrate reads the search warrant and supporting
affidavit, those documents become court documents.
Government Code section 69846 states, “The clerk of the
superior court shall safely keep or dispose of according to
law all papers and records filed or deposited in any action
or proceeding before the court.” There is another provision
of the same code describing the court record as “[a]ll
filed papers and documents in the case folder. . . .” (Gov.
Code, § 68151, subd. (a)(1).) The Government Code
also addresses the destruction of court records
specifically providing for a 10-year period for retention
of search warrants except in capital cases. (Gov. Code,
§ 68152, subd. (j)(18).) The Buena Park Police
Department destroyed the original warrant affidavit long
before the expiration of the 10-year retention period. In
addition to other reasons stated in this opinion, the
destruction of the affidavit in this case leads us to
conclude that the trial court must assume responsibility
for the collection and retention of all documents submitted
in support of a search warrant.

Hankins’ affidavit requesting an order sealing the search
warrant, warrant affidavit, and return may have established
sufficient cause to seal these documents under Hobbs,
supra, 7 Cal.4th 948. However, nothing provided to this
court explains or justifies his additional request to store
these documents at the Buena Park Police Department.
Essential to our system of justice is the right of a
criminal defendant to an adequate appellate record.
(Griffin v. Illinois (1956) 351 U.S. 12, 18; People v.
Arias (1996) 13 Cal.4th 92, 159.) The building of an
“adequate” record in cases involving a search warrant begins
with the affiant’s request for “an adjudication that
probable cause exists for the search.” (Dunn v. Municipal
Court, supra, 220 Cal.App.2d at p. 869.) The Hobbs decision
assumed sealed affidavits would be maintained in the
court’s file following in camera proceedings. (People v.
Hobbs, supra, 7 Cal.4th at p. 975.) As this case
demonstrates, preservation of an adequate appellate record
begins long before any in camera review of the warrant
affidavit.

We question whether the parties’ rights, the principles of
effective appellate review, or the orderly administration
of justice are served by an otherwise unnecessary
authentification process simply because a law enforcement
agency would prefer to maintain sealed warrants or warrant
affidavits in its custody? We think not. As noted in Kaylor
v. Superior Court (1980) 108 Cal.App.3d 451, “We, as an
appellate court, must look to the affidavits to determine
sufficiency of the evidence, but such a review is based on
the assumption . . . that all affidavits were considered.
[Citation.] The constitutional requirements, while placed
on the magistrate because of the review nature of his or
her role, also permits ready appellate review of the
magistrate’s action. Every item considered must be in
writing. How may the trial court or we on appeal, other
than by guesswork, determine whether the magistrate met the
constitutional standard of reasonableness [citation],
without a record which tells us what was considered and
what was not?” (Id. at pp. 457-458.)

The instant case presents a vivid example of why our courts
are the preferred record keepers in judicial proceedings.
Hankins presented a search warrant with supporting
affidavit to the magistrate on August 9, 2001. In 2006,
without the benefit of the original warrant affidavit or
authenticated copy retained by the superior court, the
parties seek this court’s independent review of the
magistrate’s probable cause determination and the trial
court’s subsequent rulings on motions to suppress and for
discovery. The documents included in the appellate record
are too far attenuated from the magistrate’s determination
of probable cause to serve as a legitimate basis for any
decision on the warrant’s validity. The events subsequent
to the magistrate’s determination, Hankins retention of the
crucial part of the warrant affidavit, the court’s initial
handling of the hearing on Galland’s motions to disclose
that document, and its subsequent and belated review, which
yielded an entirely new page to add to it, provides no
reasonable belief in the authenticity of any of the
documents not retained by the court after the filing of the
return.

The most important part of a search warrant is the
affidavit of probable cause. Without good reason, Hankins
and his department retained the original affidavit, which
no longer exists because of that agency’s actions, and the
appellate record supplies scant evidence on which this
court can place its confidence in what is included in the
record. How much more disturbing to the average citizen to
discover the law enforcement agency involved in a criminal
case retained the document that provided legal
justification for a search of home, possessions, and
person. Human nature precludes an unquestioning faith in a
legal procedure that cannot guarantee objectivity and
proper respect for important documents. Public confidence
in our judicial system is founded on its ability to serve
as a neutral player in the proceedings before it. Reliable
record keeping is a basic component of public trust.

A search incident to a warrant is a governmental invasion
of individual liberty and property. The abuse of that
process led to the adoption of the Fourth Amendment and
legislation prescribing mandatory procedures to be followed
when a warrant is issued and thereby given judicial
sanction. (Sgro v. United States (1932) 287 U.S. 206, 210.)
Essential to this protection is the state’s ability to
ensure the authenticity of the supporting affidavit of
probable cause. Simply having any judicial officer review
an affidavit of probable cause at any point in the criminal
proceedings and then conclude the magistrate must have
reviewed the same document provides no such assurance. When
a police officer submits a written affidavit of probable
cause, the issuing magistrate assumes the responsibility of
ensuring probable cause existed for the search. It would be
much easier to shoulder this responsibility if the
magistrate ensures the original affidavit in its entirety
is timely filed with the court clerk. We find support for
our conclusion in the various statues governing search
warrants.

In addition to the grounds for issuing the warrant
(§§ 1523-1527), the statutory scheme contains
detailed provisions governing execution and post-execution
procedures for search warrants, including the requirement
to promptly return property if it later appears there was no
probable cause (§§ 1528-1541). Section 1541
directs the magistrate to “annex the affidavit, or
affidavits, the search warrant and return, and the
inventory, and if he [or she] has not power to inquire into
the offense in respect to which the warrant issued, he must
at once file such warrant and return and such affidavit, or
affidavits, and inventory with the clerk of the court
having power to so inquire.”

Galland argued section 1526, subdivision (a) carries with
it an implied requirement the magistrate retain a copy of
the search warrant and written affidavit. Section 1526,
subdivision (a), provides, “The magistrate, before issuing
the warrant, may examine on oath the person seeking the
warrant and any witnesses the person may produce, and shall
take his or her affidavit or their affidavits in writing,
and cause the affidavit or affidavits to be subscribed by
the party or parties making them.” Galland contends the
phrase “take his or her affidavit” means to physically take
the affidavit from the affiant and place in the court file.
But it is clear from the context of the statute whatever
“take” means, it is solely for the purpose of ensuring the
affidavit or affidavit is signed. On appeal, Galland
contends the entire statutory scheme “read as a whole”
requires the magistrate to retain the entire search warrant
affidavit when the warrant is issued or at the time the
return is filed. We agree with this contention.

Our role in construing a statute is to “`ascertain the
intent of the Legislature so as to effectuate the purpose
of the law.’ [Citation.] The words of the statute are the
starting point. `Words used in a statute . . . should be
given the meaning they bear in ordinary use. [Citations.]
If the language is clear and unambiguous there is no need
for construction, nor is it necessary to resort to indicia
of the intent of the Legislature. . . .’ [Citation.]”
(Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977.) The
word we need to define in this statutory scheme is
“affidavit.”

An affidavit is “a sworn statement in writing made . . .
under oath or an affirmation before an authorized
magistrate or officer.” (Webster’s 3d. New Internat. Dict.
(1993) p. 35.) Hankins’ sworn statement as presented to the
magistrate contained information essential to find probable
cause for the search. The fact the magistrate ordered
Hankins` affidavit sealed pursuant to Hobbs, supra, 7
Cal.4th 948 and Evidence Code sections 1041 and 1042 does
not convert a single affidavit into two or more separate
documents. The common sense meaning of the word “affidavit”
as used in sections 1523 et seq. is the entire affidavit.
Whether the court finds reasonable cause to seal part of the
affidavit or the entire affidavit makes no difference. The
entire affidavit as reviewed by the magistrate is a court
record subject to the pertinent Government Code sections.
Any other interpretation of the state’s statutory scheme is
untenable and fraught with mischief.

The Attorney General argues that assuming a violation of
the state or federal Constitutional or state statutory
provisions requiring a search warrant to be based on an
affidavit establishing probable cause, a violation of these
provisions does not automatically trigger the exclusionary
rule. True, since the passage of Proposition 8 and its
amendment of article I, section 28, subdivision (d),
application of the exclusionary rule as the remedy for an
improper search or seizure is governed by the federal
Constitution as interpreted by the United States Supreme
Court. (In re Tyrell J. (1994) 8 Cal.4th 68, 76, overruled
on other grounds in In re Jamie P. (Nov. 30, 2006, S135263)
__Cal.App.4th __ [51 Cal.Rptr.3d 430].) In Hudson v.
Michigan (2006) __ U.S. __ [126 S.Ct. 2159] (Hudson), the
high court made clear suppression of evidence is the remedy
of “last resort.” (Id. at p. 2163.) However, the due
process violation involved here did not occur in the
execution of the warrant as it did in Hudson. In that case,
the state conceded the police entry pursuant to a valid
warrant violated knock-notice principles. (Ibid.) Galland
challenges the validity of the warrant and we have
concluded the appellate record is inadequate for effective
review of the magistrate’s decision or the trial court’s
subsequent rulings on the issue. Further, the deterrence
benefits of applying the exclusionary rule outweigh its
substantial social costs in this case. (Ibid.) As noted,
Hankins’ retention of the original warrant affidavit
fomented an otherwise unnecessary post-execution
authentification process. The danger posed by law
enforcement retention of the original warrant affidavit is
too great to consider the procedure “an inconsequential
irregularity.” (People v. Murgia (1974) 43 Cal.App.3d 85,
87.)

We acknowledge cases where the court found the appellate
record adequate notwithstanding law enforcement retention
of the sealed portion of the original affidavit. But we
have addressed and disapproved of this procedure before.
(People v. Martinez (2005) 132 Cal.App.4th 233 (Martinez).)
In Martinez, the defendant pleaded guilty to possession of
a controlled substance, being under the influence of a
controlled substance, possession of narcotics
paraphernalia, and possession of a hypodermic syringe. He
also admitted four prior “strike” convictions under the
“Three Strikes” law. His plea followed unsuccessful
pretrial motions to traverse and quash the search warrant
that led to his arrest. Ultimately, this court found no
reversible error. (Id. at p. 237.) However, the court’s
discussion of the merits was preceded by a recitation of
the difficulties it faced in obtaining an adequate
appellate record.

“Our determination of whether the search warrant was
supported by probable cause and whether the confidential
attachment to the warrant affidavit was properly ordered
sealed required us to review the confidential attachment.
It became evident, however, after reviewing the sealed
transcript of the in camera hearing, that the confidential
attachment was not part of the record on appeal. Rather, the
record showed the document was brought to the in camera
hearing by Investigator Pham and returned to his custody at
the conclusion of the hearing. Subsequent inquiries to the
superior court confirmed the confidential attachment was
not in the superior court’s files. [¶] We ordered
the trial court to retrieve the confidential attachment,
authenticate it, unseal it, make a copy of it, reseal it,
and transmit the copy to this court in a sealed condition.
The trial court did so, but it did not transmit any order
stating it had authenticated the sealed document. We
therefore issued a second order for the trial court to
provide us with a statement indicating whether it was able
to authenticate the confidential attachment as the one it
had reviewed during the in camera hearing held on March 12,
2004. The trial court complied by preparing a sealed
reporter’s transcript of an in camera hearing held on June
10, 2005, wherein it reviewed and authenticated the
document at issue.” (People v. Martinez, supra, 132
Cal.App.4th at p. 239.)

The court further stated it had “no reason to doubt the
authenticity of the confidential attachment,” but
questioned the trial court’s decision to allow a law
enforcement officer to retain a sealed document in his or
her possession, particularly once the court has reviewed
the document in camera in ruling on a motion to traverse
and quash the search warrant. (People v. Martinez, supra,
132 Cal.App.4th at pp. 239.) Instead, the trial court
should have filed the confidential attachment in a sealed
condition along with the search warrant and related
affidavit following the in camera hearing. (Id. at p. 240.)
Here, there is good cause to doubt the authenticity of the
confidential attachment in the appellate record. As stated
before, at every procedural juncture the trial court’s
handling of the warrant affidavit invited error and
confusion.

We are aware of the practical concerns generated by
requiring the magistrate to ensure the entire search
warrant affidavit, including any portion ordered sealed, be
timely filed with the superior court clerk. Police officers
frequently need to secure a search warrant in the middle of
the night. Magistrates often live miles from the closest
branch of the superior court. The press of work may
prohibit the officer affiant from waiting at the courthouse
door to file documents. Nevertheless, the entire warrant
affidavit becomes a court document when it is presented to
a magistrate in support of a search warrant. From then on,
the document is a matter of public record to be treated
like a public record. It is not evidence of guilt to be
produced in a subsequent criminal trial and therefore
properly retained by the investigating law enforcement
agency. Consequently, to avoid the constitutional and
statutory violations that occurred here, the affiant officer
must also ensure the entire warrant affidavit, including
any portion ordered sealed by the magistrate, is filed with
the clerk of the superior court at the officer’s earliest
opportunity.

Our resolution of the case makes discussion of Galland’s
remaining arguments unnecessary. Therefore, we render no
decision on Galland’s argument the trial court erred in
finding compliance with knock-notice provisions of section
1531, nor do we address Galland’s arguments concerning on
the continuing validity of any part of the decision in
Hobbs, supra, 7 Cal.4th 948. Galland’s request to correct
the abstract of judgment is moot because the trial court
stated the correction had been made and we have no evidence
to the contrary.

Because Galland was denied due process of law, the order
denying his motions to quash and traverse the search
warrant and to suppress evidence must be reversed.
Galland’s motion to unseal the warrant affidavit is denied.

III

The judgment is reversed and the matter is remanded to the
trial court to allow Galland to withdraw his guilty plea.
(People v. Saldana (2002) 101 Cal.App.4th 170, 176.) Any
evidence discovered as the result of the search warrant
executed in this case is inadmissible against Galland at
any trial or other hearing. (§ 1538.5, subd. (d).)

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.