Seibel

In this case we are called upon to resolve the tension between the due process rights of the defendant and the public need to protect the identity of a confidential informant. (See Evid. Code, § 1042, subd. (b).) The issue before us is whether the superior court erred in upholding a warrant search where the major portion of the affidavit in support of the warrant was sealed to protect the informant’s identity.

We find that the procedures utilized by the magistrate and the superior court, while they met the state’s need to protect confidentiality of an informant, did not sufficiently safeguard the defendant’s right to test the affidavit. We hold that where portions of an affidavit are sealed, procedures similar to those established in People v. Luttenberger (1990) 50 Cal.3d 1 [ 265 Cal.Rptr. 690 , 784 P.2d 633 ] should be utilized in order to assure fairness to both the prosecution and the defendant. Because appellant’s rights were not protected in this instance, we reverse and remand the case to the superior court for further proceedings.

Procedural History

The offenses occurred on December 18, 1986. The issue of the propriety of sealing the affidavit was raised for…