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Federal Magistrate Judge Holds that Exclusion of Defense Counsel from In Camera Hearing on Challenge to Search Warrant (Under People v. Hobbs) Violates Federal Constitutional Rights to Counsel and Due Process
Mar. 2, 2009

On February 20, 2009, a federal magistrate judge held that the in camera proceedings approved by the California Supreme Court in People v. Hobbs (1994) 7 Cal.4th 948 for review of sealed search warrant affidavits violate the federal constitution. Moeller v. Lockyer, Order (E.D. Cal. no. CIV S-01-2351 FCD JFM P, Filed Feb. 20, 2009) 2009 WL 426089. The magistrate judge, whose decision is still subject to objections from the parties and de novo review by the district court judge, held that a hearing on a motion to suppress evidence is a critical stage of the proceedings and the exclusion of counsel from that proceeding thus violates the Sixth Amendment right to counsel. Because the exclusion from the hearing was complete, the magistrate judge recommended that the error be found automatically reversible and not subject to harmless error analysis.

Based on the reasoning in the Moeller report, attorneys should consider raising these arguments in California appeals in which the suppression hearing was conducted under the Hobbs in camera procedure.

View the magistrate judge's decision here.

Update (July 7, 2009): On June 23, 2009, a district court judge rejected the magistrate’s analysis. (Moeller v. Lockyer (E.D. Cal. June 23, 2009, ; no. CIV. S-01-2351 FCD JFM P) Memorandum and Order . (As of this date the district court’s decision is not available on Westlaw, but a PDF of the slip opinon can be viewed here.)

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