The police department of Buena Park, California obtained a search warrant for the residence, automobile and person of Anthony Andrew Galland based upon information from a confidential informant. In order to protect the identity of the informant, the police department requested that part of the affidavit supporting the warrant be sealed (See People v. Hobbs (1994) 7 Cal.4th 948,30 Cal’rptr.2nd 651; 873 P.2nd 1246) and that the sealed portion of the affidavit be released to the custody of the police department. The magistrate agreed. The defendant made a motion to suppress the seized evidence alleging that the affidavit did not comply with the Fourth Amendment. The sealed portion of the affidavit was brought to the courtroom. The judge reviewed the entire affidavit and denied the motion and the sealed portion of the affidavit was returned to the police department.

The defendant appealed the denial of the motion and the fun began. Prior to the appeal, the police department purged its files and the sealed portion of the affidavit was lost. The Court of Appeal held that there was no authority to give the sealed portion of the affidavit to the police department in the first place. Further it ruled that without the entire affidavit it was unable to rule on the appeal and it reversed the lower court denial of the defendant’s motion to suppress evidence, even thought the district Attorney found a five page unsigned version of the affidavit.

The California Supreme Court in People v. Galland, agreed with the Court of Appeal that there was no law authorizing the trial court to place the sealed portion of the affidavit in the custody of the police department. But it invented a law authorizing the placement of the sealed portion in the custody of the police when five conditions occur. First, the disclosure of the sealed portion would hinder law enforcement investigations or the safety of the informant. Second,That the clerk’s office had insufficient security procedure to maintain the sealed portion of the affidavit. Third, that the law enforcement agency had sufficient safety procedures to protect the document. Fourth, the law enforcement agency can save the document securely for ten years in a noncapital case and permanently in capital case. The fifth and last requirement is that the magistrate must have made a sufficient record of the incident to provide information in case the affidavit is lost or destroyed.

Using these newly invented criteria the Supreme Court found that the magistrate had not complied with them prior to placing the sealed portion of the affidavit in the custody of the Buena Park Police Department. However, since there existed the District Attorney’s unsigned version of the affidavit and since the Orange County Superior Court, after the negative ruling of the Court of Appeal, conveniently, found a signed copy of the affidavit all is well and the Supreme Court reinstated the denial of the Galland’s suppression motion.

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