Lewis

I. INTRODUCTION

Appellant was convicted of selling rock cocaine, and possessing it for sale, based in part on what a police officer observed from a surveillance location. At trial, the prosecution declined to identify the location, citing the government information privilege codified in Evidence Code section 1040. After a brief in camera hearing at which neither appellant nor his trial counsel was present, the trial court permitted the prosecution to assert the privilege, without striking the officer’s testimony or making any finding adverse to the prosecution’s case under section 1042.

On appeal, appellant argues that the identity of the location from which the officer made his observations was material. He contends the trial court therefore made an error of constitutional dimensions in permitting the prosecution to keep the location secret without excluding the officer’s testimony, or making some other adverse finding, as a consequence.

We conclude that the surveillance location was not material because the police officer’s testimony about observations from that location was sufficiently corroborated by independent evidence that there was no realistic possibility…