Challenge to Sealed Search Affidavits

The California Supreme Court has permitted law enforcement to seek a search warrant with a sealed affidavit. When it comes time for the defendant to challenge the search, he or she is not permitted to see the sealed affidavit. The court would review the affidavit without defense counsel present to determine if there was probable cause for the warrant. Defense counsel could submit questions for the in camera hearing.(People v. Hobbs (1994) 7 Cal.4th 948.)

A magistrate ruled in a federal habeas corpus petition from a state conviction that the in camera procedure for reviewing sealed affidavits for search warrants unconstitutionally deprived the defendant of the right to counsel and an adversary hearing. (Moeller v. Lockyer (E.D. Cal Feb. 20, 2009) 2009 WL 426089, case no. CIV S-01-2351 FCD JFM P.) The decision of the magistrate is still subject to approval by a judge of the United States District Court.

In light of these developments, counsel should consider challenging the procedure of in camera reviews of search warrant affidavits.

(March 7, 2009)

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