Evidence excluded because officer didn’t know law

Mike Novakowski
March 31, 2010
By Mike Novakowski
A police officer’s ignorance of a law he should have known and the resulting violation of an accused’s rights is a breach which must be treated seriously, BC’s highest court has warned. In R. v. Reddy, 2010 BCCA 11 an officer was dispatched to a report of two “suspicious males,” one in an older Dodge and the other in a newer Mercedes, who had parked on a street for several hours. The caller thought they might be selling drugs. The officer saw two vehicles matching the description; the Dodge was parked behind the Mercedes and two men were in the front seat.

A police officer’s ignorance of a law he should have known and the resulting violation of an accused’s rights is a breach which must be treated seriously, BC’s highest court has warned.

In R. v. Reddy, 2010 BCCA 11 an officer was dispatched to a report of two “suspicious males,” one in an older Dodge and the other in a newer Mercedes, who had parked on a street for several hours. The caller thought they might be selling drugs. The officer saw two vehicles matching the description; the Dodge was parked behind the Mercedes and two men were in the front seat.

He drove around the block and pulled in behind the Dodge, approaching the drivers side while a backup officer went to the passenger side. Reddy sat in the fully reclined driver’s seat – the passenger seat was upright – said he didn’t have any identification but provided his name, date of birth and address.

Asked what he was doing, he said he was waiting for a friend, who lived nearby, to return home. He pointed to the house, which the officer knew belonged to a drug dealer. The officer remembered a case eight months earlier where Reddy was a passenger in a car driven by a prohibited driver in which six machetes were found under the driver’s seat.

Reddy said it was too hot to wait inside the house and that he had been waiting in the car about seven minutes.

A computer check showed the Dodge was registered to an older Asian male and that Reddy’s probation prohibited him from possessing a cell phone or pager or being in a vehicle with them.

The officer asked Reddy to step out, telling him he had conditions and was going to check for cell phones or pagers. Reddy asked if he could remove his thin red track jacket, as it was hot; the officer agreed and he struggled to take it off, draped it over the driver’s seat and was told to stand by the curb. As the officer crouched to look under the driver’s seat, Reddy bolted, ignoring a command to stop.

The officer began to pursue, but changed his mind because there were no arrest warrants outstanding, the conditions of the probation order were not particularly stringent and he knew Reddy’s identity. He went back to continue his search and picked up the jacket, which felt heavy. There was a Beretta .380 pistol inside one pocket and a Colt .45 pistol in the other, both loaded.

At trial in BC Provincial Court the officer said he decided to detain Reddy “for investigation” and search the Dodge for cell phones and pagers. The officer’s articulable cause to detain was based on the following:

  • Reddy said they were there for seven minutes. There was no reason to prefer the information from the anonymous complainant, but it was a basis for suspicion.
  • Reddy had no identification on him, nor did he own the vehicle.
  • Reddy said he was waiting for a friend in the nearby house, which the officer believed was associated with drug dealing.
  • The officer had dealt with Reddy previously when the machetes were found.
  • Reddy was on probation with conditions.

The trial judge found the search proper. Although the officer didn’t suspect anything specific, he was concerned about weapons and whether Reddy was complying with his probation order, among other things.

“The courts rely on the police to monitor compliance with probation orders and the public relies on the police to maintain order,” said the judge. “In the circumstances here, where a search of the vehicle and not the person would be only moderately intrusive and where the vehicle wasn’t even owned by the accused, a search, even for such cause and even though no specific offence was suspected, was justified.”

Reddy also fled, which demonstrated a consciousness of guilt. “With the added ingredient of the flight,” he noted, “there is no question that the police had good cause to search the vehicle.”

Since there were no Charter breaches, the handguns were admissible – and even if the Charter was violated, the judge would have admitted the guns under s.24(2). Reddy was convicted of two charges each of carrying a concealed weapon and carrying a firearm in a careless manner.

Reddy appealed to the BC Court of Appeal contending, among other grounds, that his rights under s.8 (unreasonable search or seizure) and s.9 (arbitrary detention) were breached and that the handguns should have been excluded under s.24(2). He was detained when directed to get out of the car, he argued, even though the officer had only a hunch he might be breaching his probation order.

The Crown suggested Reddy was neither physically nor psychologically detained – and even if he was, it wasn’t arbitrary.

h3. Detention

Justice Frankel, authoring the majority judgment, first reviewed the test for determining whether a person has been detained.

He noted it is “an objective one, although the particular circumstances and perceptions of the individual involved may be relevant.”

The officer was engaged in something more than preliminary investigative questioning. He told Reddy he wanted to check for phones and pagers and told him to get out. Reddy complied and moved to where he was directed. His flight did not contradict the notion of psychological detention, since by then he had already been detained.

“A reasonable person directed by a police officer to get out of a vehicle would not question or challenge the officer’s authority, but would comply in the belief that he or she had no other option,” said Frankel. “That (the accused) did not remain at the curb for very long does not negate the fact that he was detained at the beginning of his encounter with (the officer).”

Police have a common law power to detain a person for investigation if they have reasonable grounds to suspect they are involved in on-going criminal activity. An officer invoking that power must subjectively believe the requisite standard has been met and the belief must be objectively reasonable. The officer presented no evidence that he subjectively suspected Reddy was committing an offence:

The fact that (the accused), who properly identified himself, was sitting in someone else’s vehicle outside the home of a known drug dealer and that his statement as to how long he had been there conflicted with information provided by an unknown 911 caller, does not, in my view, support a reasonable suspicion that he was in breach of the terms of his probation order. Nor does the additional fact that some eight months earlier (the accused) had been a passenger in a vehicle in which machetes had been found, lend support to a reasonable suspicion that (the accused) was in breach of the probation order (para. 69).

The decision to detain and search was based solely on the probation order and hunch or bare suspicion, which was not sufficient to rise to the level of suspicion necessary to interfere with someone’s liberty. Since there was no lawful basis for detention, it was arbitrary and breached s. 9.

h3. The search

Searching a vehicle to ensure compliance with a probation order on nothing more than a hunch is unlawful. Frankel noted:

(T)here is no support for the proposition that, when the police have a bare suspicion that a person in a vehicle is in breach of a condition of a probation order, they have authority to search that vehicle for evidence of that breach. Further, even when police officers lawfully detain someone reasonably suspected of being in breach of a probation order, they do not have a general power to search incidental to that detention for evidence of the suspected breach.

It is clear that police officers may only conduct relatively non-intrusive protective searches incidental to a lawful investigative detention and that such searches can be undertaken only when the officers have a reasonable basis for believing that their safety, or the safety of others, is at risk. More specifically… (the decision to search) cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition (references omitted, para. 73).

The officers’ only (and stated) purpose was to determine whether Reddy was breaching a probation condition. There was no recognized common law or statutory warrantless search power to search in these circumstances, and Reddy’s flight made no difference.

Although “flight can be both a subjective and objective factor in a reasonable belief or a reasonable suspicion determination,” the officer’s bare suspicion was not elevated to a subjective reasonable suspicion that Reddy was in breach of a condition. Even if he did have both subjective and objective grounds for a reasonable suspicion by reason of flight, the officer never detained on that basis:

More importantly, in my view, (the accused’s) flight cannot be considered at all in determining whether a reasonable suspicion existed regarding his involvement in criminal activity... (since he) was fleeing from an unlawful detention... (The officer) exceeded his powers when he directed (the accused) to get out of the Dodge and stand near the curb. (The accused) had every right to disregard those directions and it would be wrong to use his eventual disobedience of them against him.

What occurred is comparable to a situation in which someone who refuses to comply with an order that a police officer has no authority to give is arrested for obstruction and then searched incidental to that arrest. As the officer wasn’t in the execution of his duty when he gave the direction, the arrest would be unlawful and so would the search (para. 78).

Standing

The Crown’s submission that Reddy had no standing to object to the search because he had no privacy interest in the Dodge was rejected, since he had a privacy interest in his jacket. He did not deliberately absent himself at the time of the search, abandon the jacket or renounce any ownership interest in it. His actions (flight) taken in response to an unlawful investigative detention did not support a finding that he abandoned his privacy interest.

“To accept the Crown’s argument that (the accused), by acting as he did in the face of an unlawful detention, lost his privacy interest in the jacket, would be to turn the law on its head,” said Frankel. “It would mean that a person who refuses to submit to an unlawful interference with his or her constitutional rights would, by that act of refusal, be abandoning other constitutional rights. This is illogical, unprincipled and not in keeping with a purposive interpretation of the Charter. The search of the jacket violated Reddy’s s.8 Charter rights.”

h3. Exclusion

The majority excluded the evidence. Using the three lines of enquiry under s.24(2), admitting it would have brought the administration of justice into disrepute because of:

The seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct);

The impact of the breach on the Charter protected interests of the accused (admission may send the message that individual rights count for little); and

Society’s interest in the adjudication of the case on its merits.

h3. Charter-infringing state conduct

Wilful or reckless disregard for Charter rights will tend to support excluding evidence. A court will be more concerned about dissociating itself from conduct and excluding the evidence if there is a major departure from Charter standards or police know (or should have known) that their conduct wasn’t Charter compliant.

If a breach was merely of a technical nature or the result of an understandable mistake, dissociation is much less of a concern. The officer effected an investigative detention only to search, 11 months after the Supreme Court of Canada released its seminal judgment on investigative detention (R. v. Mann). That decision accepted that police have the power, at common law, to detain individuals for an investigative purpose in the absence of grounds for an arrest, and a limited power to conduct incidental protective searches – but the court also delineated the thresholds that must be met before they can exercise either power. Thus, the police officers were not operating in circumstances of considerable legal uncertainty:

The critical factor in situating (the officer’s) conduct along that fault line (blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights) is that at the time of his encounter with (the accused) he either knew, or ought to have known, that he did not have the power (a) to detain someone for investigation on a bare suspicion that that person might be in breach of a condition of a probation order, or (b) to conduct a search incidental to an investigative detention that is unconnected to any safety concerns.

Whatever uncertainly may have existed with respect to those aspects of investigative detention had been swept away by Mann. Although… instant knowledge of court decisions is not to be attributed to the police, they are expected to comply with those decisions within a reasonable time…

In (R. v. Brydges), the Supreme Court held that, by reason of s. 10(b) of the Charter, the police have a duty to advise a detainee of the existence and availability of legal aid plans and duty counsel. However, to give the police time to take the steps necessary to implement that decision the Court provided a 30-day transitional period.

I am not suggesting that 30 days is the outside limit with respect to the time within which the police are expected to bring their practices into conformity with pronouncements by the Supreme Court of Canada. In Brydges, the Court was of the view that 30 days was “sufficient time for the police forces to react and to prepare new cautions.” Other decisions may well take longer to implement such as, for example, where it is necessary for police forces to update their operations manuals and provide training.

However, in my view, 11 months was ample time for police officers to bring their investigative-detention practices into conformity with the dictates of Mann. Accordingly, I consider the violation of (the accused’s) rights to lie at the serious end of the breach-spectrum (references omitted, paras. 101-102).

h3. Impact

Reddy, “could reasonably expect that he would not, in the absence of lawful authority, be directed to get out of the vehicle in which he was sitting and have his jacket searched.” The breaches were a significant, but not egregious, intrusion on Reddy’s Charter-protected interests.

h3. Societal interest

The pistols were highly reliable evidence and critical to the prosecution of serious offences. The public had an interest in the successful prosecution of persons who unlawfully carry loaded handguns. On the one hand, “the dangers that such conduct creates cannot be overstated (but) the public also expects those engaged in law enforcement to respect the rights and freedoms we all enjoy by acting within the limits of their lawful authority.”

In balancing all the factors, the majority concluded that the repute of the administration of justice would be adversely affected by admitting the pistols. The law relating to investigative detentions was clear and the “failure to act in accordance with the limits set by the highest court in the land tips the s.24(2) scales towards exclusion.” The guns were excluded and Reddy was acquitted.

h3. A different view

Justice Hall viewed the detention as lawful. Although the officer should have advised Reddy of his rights when he was detained (told to get out of the car), there were no ss.8 or 9 breaches. This wasn’t a random stop or groundless search of a vehicle, nor was it a situation where police had no reason to suspect criminal activity. The officer was focussed on possible possession of paraphernalia prohibited by his probation.

“The information in hand, including the proximity of the parties to the drug house, made it entirely appropriate for the officer to undertake a search of the vehicle,” said Hall. As for the s.10(b) breach, it was primarily theoretical since Reddy fled almost immediately upon exiting the car. “His actions were not indicative of any likelihood that he would have been interested in consulting counsel,” said Hall.

His action of running away from the scene also afforded a sensible reason for the officer to carry on with some examination of the vehicle, for it was a fair inference that the car contained something illegal that motivated the (accused) to flee, presumably to escape apprehension... The police did not act in an oppressive or cavalier fashion and had an articulated reason to detain Reddy and enter upon a search of the vehicle. The fruits of the search were the two handguns found in the jacket the appellant had just removed and left in the vehicle. It perhaps bears observing that if the police had been supine in this instance and not pursued an investigation and, later, one of the guns was employed (not, unfortunately, an uncommon scenario in the drug world), the public would be extremely critical of such police action, or more properly, inaction (para. 144).

In weighing all of the s.24(2) factors, the nature of police conduct, the relatively nonintrusive search and the nature of the offence disclosed, the evidence should have been admitted, Hall wrote. The lapses of police conduct were not at the extreme end of the scale, the search was in no way personal or intrusive and the guns were highly reliable.

A factor here in considering the repute of the administration of justice is that there has been an unfortunate level of gun violence in the Lower Mainland area of British Columbia in the recent past...

To order the exclusion of the evidence in this case would, in my opinion, do harm to the repute of the administration of justice, whereas the admission of the evidence would enhance the repute of the administration of justice.

Hall would have dismissed the appeal and upheld the convictions.

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