I dissent.
A search warrant containing no information other than the address of a home to be searched. Not a word as to what the government seeks to discover and seize.
*978A government informer, his—or, indeed, her—identity kept secret from the suspect, the suspect’s counsel, and the public.
Both the suspect and counsel barred from a closed proceeding before a magistrate. No record of the proceeding given to the suspect or counsel.
Based entirely on the foregoing, a court order approving an unrestricted search of the suspect’s home.
Did this scenario occur in a communist dictatorship? Under a military junta? Or perhaps in a Kafka novel? No, this is grim reality in California in the final decade of the 20th century.
In this conflict between the right of privacy in a person’s home guaranteed by the Constitution of California and the United States Constitution on the one hand, and on the other the desire of law enforcement personnel to protect an informer’s identity and to prevent cross-examination and impeachment, the majority of this court opt for the latter at the expense of the former. I would respect the constitutional guaranties: I would affirm the judgment of the Court of Appeal, and hold that the informer’s privilege codified in Evidence Code section 1041 does not apply when its assertion would conceal from the defendant all the material facts used to establish probable cause.
In summarizing the facts of this case the majority never squarely state that the only references to defendant in the public portion of the warrant are (1) the description, “44 Triplett St. Marysville Ca., a woodframed single family structure having the numbers 44 attached to the front exterior wall to the right of the front door,” listed under the heading “Premisses [sic] to Be Searched Continued,” and (2) a notation that Pacific Gas & Electric Company “was contacted and the following information was obtained on the addresses given: [j[] . . . 44 Triplett Way, Marysville, service was listed under Janett [sic] M. Hobbs.” I cannot agree the prosecution may validly assert the informer’s privilege when the public portion of the warrant contains only this meager information.
To borrow the analogy of defendant’s counsel, many of our cases have established that the prosecution may use two points in the public portion of the affidavit and two points in the sealed portion, and assert that two plus two equals four—probable cause. (See, e.g., People v. Greenstreet (1990) 218 Cal.App.3d 1516, 1518-1520 [67 Cal.Rptr. 377] [Greenstreet]; Swanson v. Superior Court (1989) 211 Cal.App.3d 332, 338 [259 Cal.Rptr. 260] [Swanson].) The question presented here is whether the prosecution may use *979zero points in the public portion of the warrant and arguably four points in the sealed portion and still assert it has shown four valid points. I would hold the prosecution cannot use the informer’s privilege to conceal from the defendant all the material information that established probable cause.
California has codified the informer’s privilege. Evidence Code section 1041, subdivision (a),1 allows the prosecution to refuse to disclose an informer’s identity. This privilege is absolute if a California or federal law forbids disclosure (id., subd. (a)(1)); otherwise, it is conditional and hinges on whether in the interests of justice the need for confidentiality outweighs the need for disclosure (id., subd. (a)(2)). Such an assertion of privilege usually results in an adverse ruling on any issue to which the privileged information is material (§ 1042; subd. (a)), on the ground that “ ‘it is unconscionable to allow [the government] to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense’ ” (7 Cal. Law Revision Com. Rep. (Dec. 1965) p. 205).
The prosecution may, however, refuse to reveal an informer’s identity to a defendant who seeks it to establish the illegality of a search or the inadmissibility of evidence from a search—as opposed to a defendant who seeks it to establish his innocence—without suffering that consequence. Section 1042, subdivision (b), provides that “where a search is made pursuant to a warrant valid on its face, the public entity bringing a criminal proceeding is not required to reveal to the defendant... the identity of an informer in order to establish the legality of the search or the admissibility of any evidence obtained as a result of it.’’2 By its own terms this section applies only to the identity of the informer, i.e., his name.3 Judicial extensions of the privilege, however, took the next logical step: the privilege not to reveal an informer’s identity necessarily included a privilege not to reveal any of an informer’s communication that would itself tend to expose the informer’s identity. (See, *980e.g., Roviaro v. United States (1956) 353 U.S. 53, 60 [1 L.Ed.2d 639, 644-645, 77 S.Ct. 623] [Roviaro]; People v. Seibel (1990) 219 Cal.App.3d 1279, 1287 [269 Cal.Rptr. 313] [Seibel].) For example, the Court of Appeal in Swanson, supra, 211 Cal.App.3d at page 338, observed, “the privilege is ordinarily protected by not identifying the informant by name . . . .” It then stated the affidavit must give information to show the informer’s reliability, but remarked that the need to protect the informer’s identity “may necessitate limiting the details which might reveal identity.” (Ibid.)
With the exception, however, of this case and Seibel, supra, 219 Cal.App.3d 1279, none of the California cases cited by the parties deals with the question whether the informer’s privilege may apply to shield all the material information that made up probable cause. The warrants discussed in those opinions give the defendant at least some information on which to base a challenge. (See, e.g., Greenstreet, supra, 218 Cal.App.3d at p. 1518 [the trial court excised the portions of the affidavit that would identify the confidential informer and furnished the balance to the defendant]; Swanson, supra, 211 Cal.App.3d at p. 339 [the court held that an affidavit may be sealed only to the extent necessary to protect the confidentiality of the informer’s identity]; People v. Flannery (1985) 164 Cal.App.3d 1112, 1114 [210 Cal.Rptr. 899] [Flannery] [the magistrate sealed only the portion of the affidavit concerning the reliability of the informer]; see also State v. Casal (1985) 103 Wn.2d 812 [699 P.2d 1234,1235-1236] [Casal].) Further, federal cases do not extend the informer’s privilege to shield all the material facts making up probable cause in a warrant. (See, e.g., U.S. v. Cummins (6th Cir. 1990) 912 F.2d 98, 99; United States v. Moore (9th Cir. 1975) 522 F.2d 1068, 1072 [Moore]; United States v. Rivera (N.D.Ind. 1990) 738 F.Supp. 1208, 1211-1212; United States v. Barker (D.Colo. 1985) 623 F.Supp. 823, 836.) Thus, with two exceptions, none of the cases extending the informer’s privilege to cover an informer’s communication is applicable to the question before us.4
A settled canon of statutory interpretation aids in resolving the question whether the privilege embodied in sections 1041 and 1042 applies here: “[T]he rule in favor of a construction which upholds a statute’s validity ‘plainly must mean that where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the *981other of which such questions are avoided, our duty is to adopt the latter.’ ” (People v. Davenport (1985) 41 Cal.3d 247, 264 [221 Cal.Rptr. 794, 710 P.2d 861] [Davenport].) Interpreting section 1042, subdivision (b), to extend to situations such as presented here raises potential constitutional problems. First, it may violate defendant’s right to due process to permit the prosecution both to use evidence seized pursuant to a warrant search and to conceal the facts relied on to establish probable cause. As the Court of Appeal observed, the opportunity to be heard guaranteed under the due process clause (see Crane v. Kentucky (1986) 476 U.S. 683, 690 [90 L.Ed.2d 636, 644-645, 106 S.Ct. 2142]) would be empty if the prosecution were allowed to conceal all the material information used to establish probable cause. Second, denying all the information used to establish probable cause may violate defendant’s Sixth Amendment rights. The Sixth Amendment right to effective assistance of counsel is, of course, binding on the states through the Fourteenth Amendment. (Gideon v. Wainwright (1963) 372 U.S. 335, 345 [9 L.Ed.2d 799, 805-806, 83 S.Ct. 792, 93 A.L.R.2d 733].) It attaches at all “critical stages” of the prosecution (White v. Maryland (1963) 373 U.S. 59, 60 [10 L.Ed.2d 193, 194, 83 S.Ct. 1050] [White]; Hamilton v. Alabama (1961) 368 U.S. 52, 54 [7 L.Ed.2d 114, 116, 82 S.Ct. 157] [Hamilton]) when the “presence of [the defendant’s] counsel is necessary to preserve the defendant’s basic right to a fair trial” (Coleman v. Alabama (1970) 399 U.S. 1, 7 [26 L.Ed.2d 387, 395, 90 S.Ct. 1999]) and “ ‘Only the presence of counsel could have enabled [the] accused to know all the defenses available to him ....’” (White, supra, 373 U.S. at p. 60 [10 L.Ed.2d at p. 194], quoting Hamilton, supra, 368 U.S. at p. 55 [7 L.Ed.2d at p. 117]). A suppression hearing may be such a critical stage because, as the high court recognized in Waller v. Georgia (1984) 467 U.S. 39, 46-47 [81 L.Ed.2d 31, 39,104 S.Ct. 2210], “suppression hearings often are as important as the trial itself. [Citations.] In . . . many cases, the suppression hearing [is] the only trial, because the defendants thereafter plead[] guilty pursuant to a plea bargain.” (Italics in original.)
If the suppression hearing is such a “critical stage,” a state cannot take action that renders it ineffective. (See, e.g., Geders v. United States (1976) 425 U.S. 80, 91 [47 L.Ed.2d 592, 600-601, 96 S.Ct. 1330] [holding that an order restraining petitioner from consulting with his attorney during an overnight recess impinged on the Sixth Amendment right to assistance of counsel].) Asserting the informer’s privilege so that defendant’s counsel has no access to any of the material facts that went into the determination of probable cause appears to be such an action, and hence would be prohibited. To avoid a potentially unconstitutional interpretation of section 1041, we should interpret the informer’s privilege not to apply when its assertion conceals from the defendant all the material facts used to establish probable cause. (See Davenport, supra, 41 Cal.3d at p. 264.)
*982Moreover, the informer’s privilege is not an absolute privilege. As observed earlier, section 1041, subdivision (a) (2), explicitly provides that in the absence of a federal or California law forbidding disclosure the privilege is conditional and calls for weighing the public interest in confidentiality against the necessity for disclosure in the interest of justice. Likewise, the high court in Roviaro, supra, 353 U.S. 53, observed that the decision whether to allow the informer’s privilege to apply is one of “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense” (id. at p. 62 [1 L.Ed.2d at p. 646]), and it explicitly stated that one limitation on the privilege “arises from the fundamental requirements of fairness” (id. at p. 60 [1 L.Ed.2d at p. 645]). In McCray v. Illinois (1967) 386 U.S. 300, 310 [18 L.Ed.2d 62, 70, 87 S.Ct. 1056], the high court commented that when disclosure of the informer’s identity “ ‘is essential to a fair determination of a cause, the privilege must give way,’ ” and observed such a decision must depend on the “ ‘particular circumstances of each case . . .
In the hearing on the motion to quash and traverse a search warrant, the trial court confronts only the question whether there was probable cause for the issuance of the warrant. Here, the information given by the informer was highly relevant to any defense because it was the only basis for the finding of probable cause; thus, defendant’s interest in discovery of the information was very high. Conversely, the prosecution’s interest in the confidentiality of this particular informer was fairly low: there was no evidence in the record that this informer had been of past value or would be of continuing . value to the police. Further, this case did not involve organized crime or large quantities of valuable drugs, and thus did not involve a great threat of physical harm to the informer. Given the significance of the information sought and the comparatively weak reasons for maintaining the privilege, simple fairness dictates the privilege should give way here.
A decision along the lines suggested would not have significant practical effect on the ability of police to catch criminals. I do not question generally the propriety of sealing information in affidavits to protect helpful informers. I would merely hold the informer’s privilege does not allow the prosecution to conceal from the defendant all the material facts establishing probable cause. It does not appear to be a common occurrence both that information from a confidential informer is the sole basis for probable cause and that none of the material facts can be revealed because of the threat to the informer. I am aware of only two other reported cases involving this situation. (Seibel, supra, 219 Cal.App.3d 1279; Castillo, supra, 607 N.E.2d 1050.) Moreover, the prosecution could avoid the impact of the requirements of the law merely by requiring the police to perform additional investigative *983work to confirm the confidential informer’s information. A warrant could then issue with its basis in both the informer’s information-—which the court could seal—and the police’s corroborating information. The high court itself recognized that its “decisions . . . have consistently recognized the value of corroboration of details of an informer’s tip by independent police work.” (Illinois v. Gates (1983) 462 U.S. 213, 241 [76 L.Ed.2d 527, 548, 103 S.Ct 2317] [Gates].)
Finally, if we were presented with an unusual situation in which the prosecution could demonstrate there were in fact no other means to corroborate the informer’s information, and that release of any information would endanger the informer, it might be appropriate to consider use of the procedure advocated by the majority.5 That situation, however, is not presented here. There is no evidence to suggest that additional investigation could not have turned up corroborating information, nor does it seem likely that such investigation would have failed. To the extent it is argued that the crime investigated—receipt of stolen property—was too trifling to warrant additional police investigation, this consideration also lessens the public interest in the confidentiality of the informer. (See Roviaro, supra, 353 U.S. at p. 62 [1 L.Ed.2d at p. 646].)
The majority sets out the essence of its reasoning in support of its decision in one paragraph, quoting from Seibel, supra, 219 Cal.App.3d at page 1297. (Maj. opn., ante, p. 966.) Seibel resolved a similar situation on the basis of the “rule” that an affidavit may be sealed to the extent necessary to protect the confidentiality of the informer’s identity. (Seibel, supra, 219 Cal.App.3d at p. 1297, citing Swanson, supra, 211 Cal.App.3d at p. 339, and Flannery, supra, 164 Cal.App.3d at pp. 1115-1121.) It reasoned that “[i]t follows from th[is] . . . rule that a sealing of virtually all of an affidavit... is permissible if the necessity requirement is met.” (Seibel, supra, 219 Cal.App.3d at p. 1297.) The public portion of the warrant in Seibel, however, included the following paragraph: “Within the last seven days, ... a [confidential informer] . . . told me of a man named William Seibel who sold cocaine. [Confidential informer] purchased an amount of cocaine from William Seibel . . . .” (Id. at pp. 1284-1285, omissions in original.) Without passing on the sufficiency of the information given there, I consider Seibel distinguishable insofar as the public portion of the warrant gave the defendant at *984least some information with which he could challenge the finding of probable cause. In contrast, the public portion of the warrant here merely contained defendant’s home address.
In addition, the cases cited by Seibel, supra, 19 Cal.App.3d at page 1297, in support of the proposition that a warrant affidavit may be sealed to the extent necessary to protect the confidentiality of the informer’s identity do not support the proposition that a warrant affidavit may be sealed in its entirety. Swanson, supra, 211 Cal.App.3d at pages 335-338, dealt with the question of the extent to which the informer’s privilege may be used to seal information in an oral affidavit. It observed that the “well-established procedure” used with written affidavits suggested the information in an oral affidavit that reveals a confidential informer’s identity may likewise be concealed from the defendant. (Id. at p. 338.) It explicitly warned, however, that “[n]othing in the procedure . . , suggests that the . . . affidavit may be sealed in its entirety.” (Ibid.) It explained: “Tire problem with sealing the entire affidavit is one of due process. . . . Sealing the entire affidavit prevents [the defendant] from exercising [his Fourth and Sixth Amendment] rights.” (Id. at p. 340.)
Flannery, supra, 164 Cal.App.3d 1112, likewise does not support the proposition that a search warrant affidavit may be sealed in its entirety. It is distinguishable insofar as it involved a warrant in which only “data regarding the reliability of the confidential informant” was sealed under the informer’s privilege; it did not involve a warrant affidavit sealed in its entirety. (Id. at p. 1114.) Thus, it too did not address the statutory interpretation and constitutional concerns relevant here. As Swanson observed, "Flannery cannot be read to support the proposition that an entire affidavit, including all the factual material on which probable cause is grounded, may be sealed to safeguard the identity of a confidential informant.” (211 Cal.App.3d at p. 339.) Thus, the two cases on which Seibel relied do not support the proposition for which it cited them, i.e., that a warrant affidavit may be sealed in its entirety. In essence, the majority here fail to recognize that as the informer’s privilege is asserted to conceal increasingly greater portions of the material information used to establish probable cause, considerations other than the informer’s privilege—including constitutional concerns—become increasingly important.
The majority also err in holding that the in camera procedures set forth in People v. Luttenberger (1990) 50 Cal.3d 1 [265 Cal.Rptr. 690, 784 P.2d 633] (Luttenberger) sufficiently protect defendant’s interests in the situation before us. In Luttenberger (id. at p. 8), the defendant requested information about a confidential informer to aid in satisfying the threshold showing *985required by Franks v. Delaware (1978) 438 U.S. 154, 171 [57 L.Ed.2d 667, 681-682, 98 S.Ct. 2674] (Franks) for a subfacial challenge.6 We held that if a defendant makes a sufficient preliminary showing, the trial court should conduct an in camera hearing in which it examines “records specified by the defendant,” and ascertain whether they support “the defendant’s allegations of material misrepresentations or omissions.” (50 Cal.3d at p. 24.) Thus we clearly contemplated that the defendant would have access to at least enough information to specify what records should be discovered and to formulate allegations of misrepresentation or omissions.
Moreover, the task of determining whether information in specified records supports explicit allegations differs from the procedure contemplated by the majority. The Luttenberger procedure assigns the court a role akin to a trier of fact: it must determine whether evidence supports allegations. This is the role trial judges assume in every bench trial. In contrast, the majority contemplates the court’s formulating allegations and promulgating discovery requests—a role judges do not commonly assume. Although the high court was speaking of the magistrate who issues the original warrant, its statement in Franks, supra, 438 U.S. at page 169 [57 L.Ed.2d at page 680], applies equally to the judge reviewing the probable cause determination: he “has no acquaintance with the information that may contradict the good faith and reasonable basis of the affiant’s allegations.”
For example, in People v. Garcia (1982) 109 Ill.App.3d 142 [64 Ill.Dec. 717, 440 N.E.2d 269, 271], the defendant challenged the warrant affidavit, which stated that a confidential informer had been present in the defendant’s home when the defendant sold cocaine to an anonymous friend. It also stated that an independent investigation revealed the informer had accurately described the premises, that a 1977 white Cadillac bearing Florida license plate number GBH-166 was parked in front, and that a computer check confirmed that the defendant owned the vehicle. The defendant denied each allegation, and further stated that the Cadillac could not have been parked in front of the apartment on the day and at the time stated in the affidavit because he was driving it from Miami to Chicago at that time.
*986Likewise, in People v. Redmond (1983) 114 Ill.App.3d 407 [70 Ill.Dec. 404, 449 N.E.2d 533, 534], the complaint for the search warrant stated that a confidential informer had been inside defendant’s residence recently and had seen LSD on the living room and kitchen tables. At the motion to suppress, the defendant presented the testimony of six witnesses—himself, two roommates, and three visitors. The state did not even present the testimony of the affiant. All six witnesses for the defendant testified to substantially the same events: they testified that during the time period in question they did not see other people on the premises, they did not see any LSD, and they did not take any LSD. The defendant and one other witness also related that at the time of the search, the defendant asked whether the officer really expected to find any LSD. Both observed that the officer had smirked and shaken his head, indicating “no.” The trial court later referred to the fact that the affiant had twice previously and unsuccessfully attempted to gain admission to the defendant’s residence, and observed that it appeared the affiant felt frustrated in her purpose. These allegations of material misrepresentation are exactly the type of challenge that a judge will not be able to advance on behalf of the defendant in an in camera, ex parte hearing, simply because he “has no acquaintance with the information that may contradict the good faith and reasonable basis of the affiant’s allegations.” (Franks, supra, 438 U.S. at p. 169 [57 L.Ed.2d at p. 680].)
Finally, neither the Washington state case nor the Ninth Circuit case on which the majority rely lends support to their novel extension of the in camera procedure. Both cases involved the review of warrants that concealed only a portion of the material information that established probable cause, and thus they dealt only with the type of in camera hearing we originally approved in Luttenberger, supra, 50 Cal.3d 1. (See Moore, supra, 522 F.2d at p. 1072; Casal, supra, 699 P.2d at pp. 1235-1236.) Here, in contrast, the warrant contained only defendant’s home address. Hence Moore and Casal do not speak to whether the novel use of the in camera hearing contemplated by the majority sufficiently protects defendant’s interest.
A further problem with the majority’s approach is that all defendants in this situation will automatically be entitled to a hearing. The majority state that “where, as here, all or a major portion of the search warrant affidavit has been sealed in order to preserve the confidentiality of the informant’s identity ... the court should treat the matter as if the defendant has made the requisite preliminary showing required under this court’s holding in Luttenberger.” (Maj. opn., ante, p. 972, fn. 6, italics in original.) The majority thus resolve the problem presented by a defendant who may be completely ignorant of all or a major portion of the affidavit by eliminating the threshold showing requirement.
*987Furthermore, not only do the majority grant a defendant in this situation an automatic hearing, but their reasoning may also require an automatic appeal. The majority state that a sealed transcript of the in camera proceedings should be retained for “possible appellate review.” (Maj. opn., ante, p. 975.) The defendant, however, confronts the same problem on appeal as he did in trying to obtain the initial hearing: he does not have access to any information with which to satisfy a threshold showing. To the extent the majority’s reasoning suggests again eliminating the threshold showing, the defendant will also have an automatic appeal. Again the majority attempt to remedy a symptom of a problem—the defendant’s inability to satisfy a threshold showing—by eliminating the threshold showing. In so doing, they create a host of secondary problems. I would instead attack the underlying problem itself—the defendant’s lack of access to the material information that established probable cause—by simply requiring additional police investigative work to corroborate the informer’s information, with that information being given to the defendant.
I emphasize the narrow scope of my dissent: I would hold only that the prosecution may not assert the privilege to refuse to disclose a confidential informer’s identity to shield all the material facts on which probable cause for a search is based. I observe, however, that this case does not present the problem of what portion of the material facts must be revealed for a valid assertion of the privilege, and I express no opinion as to that question.
For the reasons stated I would affirm the judgment of the Court of Appeal.
All further statutory references are to this code unless otherwise noted.
The question whether the prosecution could assert that the information given by the informer is “official information” (see § 1040, subd. (a) [defining “official information”]) and thus need not be disclosed (see § 1042, subd. (b)) is not before us because the prosecution did not advance it. I believe, however, that the same considerations I outline with respect to the informer’s privilege would prevent the assertion of the “official information” portion of the privilege set forth in section 1042, subdivision (b).
The Law Revision Commission’s comment confirms this interpretation. It states that this subdivision codifies the rule set out in People v. Keener (1961) 55 Cal.2d 714, 723 [12 Cal.Rptr. 859, 361 P.2d 587] (Keener), disapproved on another point in People v. Butler (1966) 64 Cal.2d 842, 845 [52 Cal.Rptr. 4, 415 P.2d 819]. (7 Cal. Law Revision Com. Rep., supra, p. 205.) In Keener, we approved a warrant and affidavit the public portion of which recited material facts that supported the probable cause finding; the affiapt merely declined to reveal the informer’s name. (55 Cal.2d at pp. 717-718, 721.)
The majority cite People v. Castillo (1992) 80 N.Y.2d 578 [592 N.Y.S.2d 945, 607 N.E.2d 1050] (Castillo). (Maj. opn., ante, pp. 967-969.) The case is distinguishable, however, because the New York Legislature explicitly empowered its state courts to “issue a protective order denying . . . discovery” to protect the confidentiality of informers. (N.Y Crim. Proc. Law, § 240.50, italics added; see Castillo, supra, 607 N.E.2d at p. 1050.) By contrast, here we must decide whether to judicially extend to conceal all the material facts making up probable cause, a privilege that the Legislature originally intended to protect only an informer’s identity.
United States v. Anderson (9th Cir. 1975) 509 F.2d 724 suggested in a dictum an interesting alternative: a court could conduct in camera hearings “to which the defense counsel, but not the defendant, is admitted” (id. at p. 729). and could place defense counsel under enforceable orders against disclosure of the evidence (id. at p. 730). I also observe that a court might appoint an independent counsel to represent the defendant at the suppression hearing. The appropriateness of these suggestions, however, must await a case that presents the issue.
A defendant may make two types of challenges to the sufficiency of a warrant. First, he may make a facial challenge, and assert that the statements that appear in the warrant and affidavit when taken together do not amount to a showing of probable cause. (See, e.g., Gates, supra, 462 U.S. 213.)
Second, the defendant may make a subfacial challenge, and allege that the affiant intentionally or recklessly lied in the warrant or affidavit. (See Franks, supra, 438 U.S. at p. 171 [57 L.Ed.2d at pp. 681-682].) The defendant may obtain a hearing on the veracity of the statements made in the affidavit if he successfully makes “a substantial preliminary showing” that the affiant knowingly, intentionally or with reckless disregard for the truth made a false statement, and if the allegedly false statements are necessary to a finding of probable cause. (Id. at pp. 155-156 [57 L.Ed.2d at p. 672].)