Can a police officer's surveillance location be privileged information?

Only if we were to hold that every surveillance location used by a police officer, no matter where, and even if it had been used only once and with no anticipation it would ever be reused, would qualify as privileged information, could we say the burden of establishing privilege had been met here. We cannot do that because the law reflects that the justification for finding a surveillance location to be privileged is factual, rather than simply a consequence of the desire for confidentiality by the police agency involved. In other words, police agencies do not have a unilateral right to simply declare a surveillance location privileged. "[O]ne effect of section 1040 is to establish, under appropriate circumstances, a '"surveillance location privilege"' in California." (People v. Montgomery, supra, 205 Cal.App.3d at p. 1019, italics added.)

If the rule were otherwise, its perniciousness would be evident when we consider that once the prosecution's claim of privilege is sustained, the initial burden shifts to the defendant to demonstrate the information is material before the court can grant him any relief on the basis it has been withheld. (People v. Lawley (2002) 27 Cal.4th 102, 159 ["The defendant bears the burden of adducing '"'some evidence'"' on this score"].) Thus, if the prosecution were allowed to simply declare the privilege, without making any specific factual showing of need to the court, it could unilaterally put defendant at an immediate disadvantage: i.e., the prosecution would be free to withhold relevant information about the location of the surveillance from both the defendant and the court without consequence, unless the defendant were able to demonstrate, without knowing anything specific about it, that revelation of the unknown surveillance location "might exonerate" him. (Ibid.) There is more than a whiff of "Catch-22" about that.

The factual justifications for declaring a surveillance location privileged are outlined in People v. Walker (1991) 230 Cal.App.3d 230: "'Just as the disclosure of an

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