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Answers to hypotheticals did not taint arrest


April 7, 2014
By Mike Novakowski

Only relevant evidence is to be considered when properly assessing whether the reasonable grounds standard for arrest have been met.

In <R. v. Day, 2014 NLCA 14> a police investigator received a tip from a reliable informant that the accused and his roommate possessed marijuana, cocaine and steroids for sale. The same day, the investigator corroborated some details of the tip, including Day’s and his roommate’s address, the vehicles they drove and the roommate’s involvement in selling drugs.

He also learned that a year earlier Day had been found in possession of what was believed to be marijuana and a set of digital scales, though he had not been charged at that time. Police began surveillance of Day’s residence and saw him driving off in a black Honda Civic at 3:25 pm – a vehicle the investigator was informed he would be driving. After stopping at a convenience store, a man came out and got into Day’s car. The officers were unable to see what happened in the car or when exactly the man got out of it, but they followed the car when it drove away. Day parked and then entered a downtown bar.

Meanwhile, the investigator appeared before a judge, obtained a search warrant at 4:00 pm and let the surveillance officers know. About half an hour later, they saw Day exit the bar with two women and walk to the Civic, which was parked nearby. They confronted Day when he got into the driver’s seat and started the car and arrested him for trafficking.

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The women were told they could leave and did so. A search of Day’s person yielded two cell phones and some cash. He was cautioned, informed of his Charter rights and placed in a police car. Officers searched his car and found a small quantity of marijuana, a bud buster and a used marijuana pipe. Two zip lock bags, each containing one-half pound of marijuana, were found in the trunk. Day was charged with possessing marijuana for the purpose of trafficking.

The investigator testified in Newfoundland Provincial Court that he waited for the warrant before arresting Day because he wanted to minimize the risk that the arrest could prompt contact with someone at the residence, who could have destroyed evidence.

On cross-examination the investigator did not want to speculate as to what he would have done had the search warrant not been issued. The judge found Day’s arrest unlawful and that police had breached his Charter rights to be free from arbitrary detention <s. 9> and secure from unreasonable search and seizure <s. 8>.

In the judge’s view, police did not have the requisite subjective belief in grounds for arresting Day because the officer could not say whether he would have ordered the arrest if the search warrant had not been issued. The judge also found that a reasonable person placed in the position of the police would not be able to conclude that there were reasonable grounds for the arrest.

She excluded the marijuana, cell phones and drug paraphernalia from the evidence under <s. 24(2)> of the Charter. As a result, Day was acquitted.

The Crown appealed the acquittal to the Newfoundland Court of Appeal on the basis that the trial judge erred in ruling the arrest was unlawful and that Day’s <ss. 8 and 9> Charter rights were breached. In the Crown’s opinion, the investigating officer who ordered the arrest had the necessary subjective belief that Day was committing or was about to commit a drug trafficking offence and that his belief was justifiable from an objective point of view.

Furthermore, the Crown contended that even if Day’s Charter rights were breached, the judge erred in excluding the marijuana, cell phones and drug paraphernalia from evidence.

{Arrest}

Justice Hoegg, authoring a majority judgment, first noted that “the reasonable grounds for arresting a person without a warrant encompass both 1) a subjective belief on the part of the police that the person has committed or is about to commit an indictable offence and 2) that the subjective belief must be ‘justifiable from an objective point of view’.”

{Subjective belief}

The majority concluded that the officer had the requisite subjective belief for the arrest. At no time did he say his grounds for arrest depended on the warrant being issued, nor was there any evidence that his subjective belief hinged on whether the judge issued it. Justice Hoegg stated:

<(I)t is worth observing that a decision to arrest can involve more than simply having the requisite grounds. The fact that the officer may not have arrested (the accused) had the warrant not been issued does not mean that the officer’s subjective belief was vitiated, or that his grounds were not objectively justifiable. The police may have a subjective belief that is objectively justifiable to arrest a person whom they choose not to arrest and the fact that the arrest is not carried out does not mean that the police do not have the grounds> (para. 25).

The investigator’s subjective belief in the grounds for arrest was what he personally believed at the time. What his belief might have been in a different set of circumstances is irrelevant to what he believed then. The judge focused on the investigator’s answers to hypothetical questions respecting the warrant not being issued.

Since there was no evidence linking the investigator’s belief in grounds for arrest to the warrant being issued, the evidence respecting the hypotheticals was irrelevant. It was an error in law for the trial judge to fail to state and apply the legal standard for subjective belief and consider irrelevant evidence respecting the investigator’s subjective belief.

Had she properly considered the evidence, the trial judge would have determined that the investigator had the requisite subjective belief. Furthermore, the trial judge also made a palpable and overriding error by inferring that the investigator lacked a subjective belief from his hesitation to answer a hypothetical question.

{Objective grounds}

Hoegg found the trial judge also erred in concluding the objective test for reasonable grounds had not been met. The informant was very reliable, provided information from first hand knowledge and some of the details – like Day’s address and type of vehicle he drove – were verified. In addition, there was independently verified information that he had been involved with drugs on a prior occasion.

Had the trial judge properly considered the correct legal principles, she would have concluded, in the totality of the circumstances, that the grounds for arresting Day were objectively justifiable.

“The tip itself provided detail beyond a bald conclusionary statement that (the accused) was trafficking in drugs, some of the details were corroborated, the reliability of Source B was very high, his or her source was first hand and additional investigation and surveillance served to support the belief in grounds,” said Hoegg.

Since both the subjective and objective prongs of reasonable grounds test had been met, Day’s arrest was lawful and he was, therefore, not arbitrarily detained under <s. 9>.

{The search}

Under the common law doctrine of search incident to arrest, police may search without a warrant provided (1) the arrest is lawful, (2) the search is conducted incident to the arrest for a valid purpose and 3) the search is carried out in a reasonable manner. Valid purposes for conducting searches incident to arrest include protecting police and protecting and discovering evidence.

Police searched Day and his car to discover evidence, a valid reason for searching incident to arrest. The public manner of the search did not taint its reasonableness. Hoegg stated:

(para. 65).

The searches of Day and his car were lawfully conducted incident to his arrest and there was no <s. 8> breach. The marijuana, cell phones and drug paraphernalia were admissible as evidence.

The Crown’s appeal was allowed and a new trial ordered.

{A different view}

Justice Rowe, in dissent, concluded that the arresting officer did not believe he had reasonable grounds independent of the search warrant being granted. Instead, he believed he had grounds, in part, because the warrant had been granted.

Since the arresting officer couldn’t say whether he would have had grounds to make the arrest in the absence of the search warrant, then the subjective prong of the test had not been made out. The inference the trial judge drew that the arresting officer did not subjectively have reasonable grounds for the arrest was logical.

As for the objective test, it too had not been met. Since the arrest was arbitrary and unlawful, the search incidental to such an arrest would too be unlawful and thus unreasonable.

“The arrest of (the accused) was a clear abuse of authority, one that warrants censure by the courts,” said Rowe, who felt the evidence was properly excluded. He would have dismissed the Crown’s appeal.


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