Experience counts in reasonable grounds analysis

Mike Novakowski
March 11, 2013
By Mike Novakowski
An officer's training and experience are relevant in determining whether there are reasonable grounds for an arrest. In R. v Phung, 2013 ABCA 63 police received two tips that an Asian male was dealing drugs. Phung was put under surveillance and an officer believed he saw him engage in a drug deal. He was arrested and searched as an incident to that arrest. Police found a bag each of powder and crack cocaine and a cell phone. Four bags of marijuana, four cell phones, bear spray and a large kitchen knife were found in his car. Police obtained search warrants for two residences linked to Phung and recovered bags of marijuana, ecstasy pills, cash, body armour, weapons, cocaine and weigh scales. He was charged with several crimes, including drug and weapons offences.

An officer's training and experience are relevant in determining whether there are reasonable grounds for an arrest.

In R. v Phung, 2013 ABCA 63 police received two tips that an Asian male was dealing drugs. Phung was put under surveillance and an officer believed he saw him engage in a drug deal. He was arrested and searched as an incident to that arrest. Police found a bag each of powder and crack cocaine and a cell phone. Four bags of marijuana, four cell phones, bear spray and a large kitchen knife were found in his car.

Police obtained search warrants for two residences linked to Phung and recovered bags of marijuana, ecstasy pills, cash, body armour, weapons, cocaine and weigh scales. He was charged with several crimes, including drug and weapons offences.

An Alberta Court of Queen's Bench judge concluded that the police officer's observation by itself was insufficient to provide reasonable grounds for the arrest. However, in combination with the informer tips and the officer's experience, the standard had been met. The judge concluded that the officer had the necessary subjective belief and that his grounds were objectively reasonable. The arrest was lawful and the search incidental to that arrest was reasonable. The evidence was admissible and Phung was convicted of several offences.

Phung challenged the admissibility of the evidence against him to the Alberta Court of Appeal, arguing police did not have reasonable grounds to arrest him, thereby breaching his s. 9 Charter rights. He also suggested that the incidental search was unreasonable under s. 8. In his view, the evidence should have been excluded under s. 24(2).

Reasonable grounds

For a search incidental to arrest to be reasonable the arrest itself must be lawful. Under s. 495(1)(a) of the Criminal Code an arrest requires reasonable grounds. The appeal court noted that the characteristics of reasonable grounds is an area of law that has been thoroughly plowed, citing a number of points:

  • The arresting officer must:
  • subjectively have reasonable grounds to make the arrest; and
  • those grounds must be justifiable from an objective point of view.

  • The existence of objectively reasonable grounds for arrest requires that a court consider whether a reasonable person would find reasonable and probable grounds for arrest.

  • The reasonable person is "in the shoes" of the police officer and can take into account the officer's training and experience.

  • The "reasonable grounds" standard has been described as "the point where credibly-based probability replaces suspicion" and has been characterized in terms of "reasonable probability."

  • Reasonable grounds is a standard higher than a reasonable suspicion but less than a prima facie case. Reasonable suspicion, by contrast, exists where there is "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation."

  • The totality of the circumstances must be considered, including the sufficiency of the informer tips, which were more than mere rumour or gossip.

  • It is not the roll of an appeal "court to engage in precise margin definition regarding the interpretation of physical movements by trained police officers."

Here police had both informant tips and an observed transaction. The appeal court found no error in the trial judge's conclusion that there were reasonable grounds to arrest Phung. There were no ss. 8 or 9 Charter breaches and no taint from the arrest to the content of the informations to obtain the search warrants for the residences. Phung's appeal was dismissed.

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