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All known information used to assess reasonable grounds

The information contained in an Information To Obtain (ITO), amplification evidence at trial and the results of police surveillance are all considered in deciding whether police have the requisite grounds to enter and search.

In R. v. Darby, 2012 ABCA 27, police caught a car prowler, a prolific and crack addicted vagrant, breaking into the accused’s SUV. He was sitting in the vehicle and admit- ted to stealing valuables. While looking for documents with the owner’s current contact information, police found keys draped over a loaded, unregistered handgun in the centre console. It’s serial number had been removed.

Officers arrested the vagrant and found a Blackberry in his backpack they believed was taken from the SUV. They turned it on to identify its owner. They noted numerous text messages related to criminal activity – including weapons possession, drug trafficking and kidnapping. They contacted the gang unit and Darby became the target of more intensive investigation, including surveillance.


January 30, 2012
By Mike Novakowski

The information contained in an Information To Obtain (ITO), amplification evidence at trial and the results of police surveillance are all considered in deciding whether police have the requisite grounds to enter and search.

In R. v. Darby, 2012 ABCA 27, police caught a car prowler, a prolific and crack addicted vagrant, breaking into the accused’s SUV. He was sitting in the vehicle and admitted to stealing valuables. While looking for documents with the owner’s current contact information, police found keys draped over a loaded, unregistered handgun in the centre console. It’s serial number had been removed.

Officers arrested the vagrant and found a Blackberry in his backpack they believed was taken from the SUV. They turned it on and it identified its owner. They noted numerous text messages related to criminal activity – including weapons possession, drug trafficking and kidnapping. They contacted the gang unit and Darby became the target of more intensive investigation, including surveillance.

His actions, including meets with various individuals, were suspicious. Police learned he had rented two apartments. The manager made a lawful entry at one of them and found a stolen, sawed off shotgun. The apartment was otherwise empty and seemed to be uninhabited. Officers believed this was a stash pad, used to store illicit drugs, cash, firearms and other contraband.

Forming the belief that Darby was a drug and firearm trafficker, police obtained a general warrant, signed by a Provincial Court judge, to make covert entries into the apartments to look for evidence of illicit activities. The warrant did not describe the investigative technique or procedure it authorized, list the items to be searched for or conditions of any search or seizure; instead, it referred to the attached ITO, which spoke to these issues.

The warrant further authorized entries if police had “reasonable grounds to believe that any controlled drugs or substances or the proceeds of crime from the sale of controlled drugs or substances or firearms will be found at the location.”

Officers also executed a separate general warrant at an apartment Darby vacated and found a secret access panel in a bedroom closet, likely used to store drugs and weapons. Police now believed he was using his primary apartment to store his drugs and/or firearms.

Darby was arrested about two months after the SUV break-in and a month after the warrant was issued – and was carrying $855, a Blackberry and two additional cellphones. Eight kilograms of cocaine, $150,000 cash, body armour and a handgun were found in his primary apartment. He was charged with numerous drug and weapons offences.

At trial in the Alberta Court of Queen’s Bench, Darby challenged the validity of the warrant. He argued, among other grounds, that the evidence in the ITO was insufficient and that the grounds police relied upon to execute it were inadequate. The trial judge concluded the officer had reasonable grounds to believe Darby was involved in drug and weapons trafficking when the general warrant was obtained and when they entered the apartment to search it. Darby’s Charter rights had not been breached and, even if they were, the evidence was admissible under s.24(2). He was convicted on most of the charges.

Darby appealed to the Alberta Court of Appeal submitting, in part, that police lacked reasonable grounds to execute the warrant when they searched his residence. In his view, the ITO did not provide reasonable grounds that drugs would be found in his apartment a month after it was prepared. Furthermore, he suggested police surveillance failed to provide anything more than a suspicion that he was involved in drug trafficking. Thus, he contended, police just got lucky entering his apartment because they lacked reasonable grounds to believe they would find drugs there. The court disagreed.

In assessing whether police had the requisite reasonable grounds when searching his apartment, all of the information known to the investigators at that time must be considered. This not only includes the information contained in the ITO but also the “amplification” information procured during the voire dire and the evidence derived from surveillance, which “solidified and reinforced their view, or, in other words, their ‘reasonable grounds to believe.'”

The court noted:

  • After Darby gave up his second apartment, police found a secret “access paneling” likely used to store drugs or weapons. That led them to believe that Darby was using his primary apartment to store his drugs and/or firearms.

  • Darby was seen using a rental car, even though he had two other vehicles at his disposal. He also transferred his Jeep’s registration to another vehicle, although he continued to use the Jeep. These practices were consistent with established drug trafficking practices as testified to by police.

  • When arrested prior to the execution of the warrant on his apartment, Darby had $855 in cash and three phones.

In sum, the court ruled that the trial judge did not err in finding police had the requisite reasonable belief when they executed the general warrant and searched Darby’s apartment.

Furthermore, the fact the general warrant did not list the authorized device, investigative technique or procedure, nor set out the terms and conditions, render it a nullity. It referred to the “attached ITO” which addressed those issues. Although this may not have been a good practice, it did not impact Darby’s privacy interests. Incorporating portions of the ITO by reference did not detract from the underlying objectives and interests that the authorizing provisions were designed to protect.

The warrant was immediately sealed to preserve the ongoing investigation and Darby was aware when arrested that his place was searched based on it. He also ultimately received disclosure of all relevant information. Furthermore, incorporating the ITO by reference did not mislead the authorizing judge or reviewing court and the investigating officers were well acquainted with the terms of the warrant.

Darby’s appeal was dismissed.


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