SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Superior Court [People] (2010) 186 Cal.App.4 th
1272, 1276-1278.)
Procedure: In order to avoid having to reveal an
informant’s identity, we use his or her information only to
establish probable cause. A search warrant is issued based
upon that probable cause. Then, the suspect is charged
only with the offenses revealed upon the search and/or
arrest of the suspect; matters to which the informant is not a
witness.
Motions to Reveal the Identity of an Informant:
It is the burden on the defendant to make a
sufficient showing that the unnamed informer does
in fact have information which would be material to
the defendant’s innocence. (Price v. Superior
Court (1970) 1 Cal.3 rd 836, 843; Davis v. Superior
Court [People] (2010) 186 Cal.App.4 th 1272, 1276.)
In order to discharge his burden of proving
the informant is a material witness, the
defendant need not show what the informant
would testify to, nor even that the informer
could give testimony favorable to him.
(Price v. Superior Court, supra.)
However, bare speculation or unsupported
conclusions that the informant is a “material
witness” are insufficient to discharge a defendant’s
burden. The defendant must produce evidence or a
declaration articulating the theory of his defense or
demonstrating in what manner he would be
benefited by disclosure of the informant’s name.
(People v. McCoy (1970) 13 Cal.App.3 rd 6, 12-13;
People v. Thomas (1970) 12 Cal.App.3 rd 1102,
1112-1113.)
A defense attorney’s affidavit “on
information and belief” is, as a matter of
law, an insufficient factual showing, and is
therefore not sufficient justification for
divulging an informant’s identity. (People
v. Oppel (1990) 222 Cal.App.3 rd 1146,
1153.)
© 2011 Robert C. Phillips. All rights reserved
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