Objective basis must support subjective belief for warrantless entry

Mike Novakowski
September 04, 2013
By Mike Novakowski
Not every 911 call in every circumstance warrants a forced entry by police. In R. v. Jones, 2013 BCCA 345 the accused asked for an ambulance after her visiting daughter, who was bipolar, refused to leave the house when asked to do so. While her daughter remained in the house, Jones went outside and waited in her vehicle. The ambulance requested police attendance. An officer was dispatched to a "mental health issue between a daughter and a mother" and told the daughter was "freaking out." When he arrived, Jones was outside sitting in her vehicle. She confirmed her daughter was the only person in the house, was upstairs "freaking out" and she wanted her removed.

Not every 911 call in every circumstance warrants a forced entry by police.

In R. v. Jones, 2013 BCCA 345 the accused asked for an ambulance after her visiting daughter, who was bipolar, refused to leave the house when asked to do so. While her daughter remained in the house, Jones went outside and waited in her vehicle. The ambulance requested police attendance.

An officer was dispatched to a "mental health issue between a daughter and a mother" and told the daughter was "freaking out." When he arrived, Jones was outside sitting in her vehicle. She confirmed her daughter was the only person in the house, was upstairs "freaking out" and she wanted her removed.

She gave the officer a key and waited in her vehicle. She did not give the officer permission to search the house and, if asked, would have refused entry for that purpose. The officer waited five minutes for back-up and nothing untoward was noted during this time.

The officer entered the house and saw the daughter sitting on the stairs. She was quite passive and left the residence when asked without incident. When asked if anyone else was in the house, she said no. When it became clear the officer intended to look around, she told him her mother would not want him to do so and he should ask her permission.

Although there was no indication of criminal activity or the presence of someone else in the house, the officer decided to search because:

  1. there was a policy to enter at 911 calls and clear the residence, making sure the situation was fully investigated and;

  2. to ensure that everything was "all right" and there was no one else either injured or in distress.

During the 15-minute search, the officer found a marijuana grow operation contained in three rooms. A warrant was obtained and executed. Police recovered 413 marijuana plants and 788 grams of dried marijuana. Jones was subsequently charged with drug offences.

At her trial in the British Columbia Supreme Court Jones argued that the warrantless search breached her s. 8 Charter rights. The Crown, on the other hand, submitted:

  1. police had express or implied permission to enter and search the residence,
  2. under the circumstances Jones had no reasonable expectation of privacy and
  3. the search was justified under the general common law power that enables police to search premises without a warrant where there are public safety concerns.

The trial judge rejected the Crown's first two suggestions. Jones had not given police permission to search her home, only access limited to locating and removing her daughter. Once this was accomplished, Jones maintained her expectation of privacy within her home. The judge did, however, find that police could forcibly enter a private dwelling where there were safety concerns regarding the occupants or the public.

Although not every 911 call will lead to a situation in which police have the authority to search a residence, in the circumstances of this case, the judge found the officer's actions were reasonable.

"(He) was justified in continuing a search of the premises to determine that there were no other persons involved in the situation who needed assistance and that there were no other hazards in the house that had occurred as a result of the mental health episode that the accused said had occurred."

The evidence was admissible and Jones was convicted of producing and possessing marijuana for the purpose of trafficking.

Jones then appealed to BC's top court, arguing the search wasn't justified by the common law police power to conduct searches related to public safety concerns. In her view, the standard for determining whether the officer's entry was justified was objective; it must be both necessary and reasonable for public protection.

She suggested that the trial judge applied a lower standard – a "possibility" of a public safety risk relying only on the officer's subjective view of risk. There was no evidence that anyone else was in the home, injured or needed assistance.

The Crown, to the contrary, asserted that the officer acted within the permissible scope of his duties. He wasn't required to be certain of a risk before entering. In its opinion, lack of information may be a compelling reason to justify police entry and the officer's search was minimally intrusive. He entered only to see if anyone needed help, did not use force and his search was quick and efficient.

Forcible entry

Citing the Supreme Court of Canada's judgment in R. v. Godoy, (1999) 1 S.C.R. 311, Justice Neilson, speaking for the court, noted "police have a common law duty to protect the public from health and safety risks in responding to (911) emergency calls and the performance of that duty may, in some circumstances, permit them to forcibly enter and search private premises without authority."

However, justification for a warrantless search depends on the circumstances of the individual case. Although Neilson acknowledged that the importance of protecting life and safety will require police to err on the side of caution, the correct standard to apply is objective. There must be a reasonable basis for a police officer's subjective belief that a public safety concern requires a search.

The trial judge erred in holding that there was an objective basis to support the officer's search:

  • There was no suggestion of criminal activity in the 911 call – an ambulance, not police, was requested;
  • The call did not reveal any precise safety threat or risk. The information – a "mental health issue" and a daughter "freaking out" – was nebulous.
  • Nothing on the officer's arrival indicated exigent circumstances. He waited several minutes for back-up to arrive and, during that time, neither saw nor heard anything to indicate immediate action was required;
  • When the officer approached the house, no mental health risk emerged. He immediately located the daughter just inside the front door and observed nothing else of concern. She was passive and cooperative, came out without protest, answered his questions lucidly and told him her mother would not want him to search the house.
  • Several "possibilities" enumerated by the trial judge to justify the search were speculative and there was no evidence to objectively support them. These included: 1. there may have been other persons involved or something untoward happening upstairs, 2. the daughter could have been making plans to harm herself and had been interrupted by the officer entering the premises or 3. the daughter could have been in the process of creating a hazard, such as setting fire to the premises, which would have created a dangerous situation for both herself and anyone else who might have re-entered the premises.
  • Although the limited information initially available to the officer did not eliminate the potential that this was a grave and volatile mental health situation, within minutes of his arrival the situation was significantly transformed. The daughter wasn't "freaking out" or volatile, ambulance personnel were present or en route to handle any mental health concerns and Jones, while upset, was secluded from her daughter and secure in her car.

Once the officer located the 911 caller (Jones), determined the reason for her call and provided the requested assistance by removing her daughter, his authority to be in the house ended.

Also, the trial judge failed to consider alternatives available to the officer before he decided to search further in an effort to ensure "everything was all right". He could have waited until Jones calmed and then questioned her and her daughter about the events leading up to the 911 call. He could also have asked Jones to enter the residence and ensure all was well and then arranged for the daughter to leave the area in whatever manner was appropriate.

In this case, there was no objective indicia of criminal activity or an identifiable threat to public safety in the 911 call or the circumstances that greeted police on their arrival, such as the presence of a gun or other weapon, an assault or other injury, or an injury related to an operating drug lab. The absence of such concrete indicators of crime or threat to public safety did not justify an immediate search to "make sure everything was all right". The search wasn't a necessary and reasonable violation of Jones' rights under s. 8 of the Charter.

On a final note, the court recognized that the reasonableness of police action will be factually driven and any such analysis involves weighing privacy interests against public safety:

I acknowledge the Crown's submission that allowing this appeal may have a chilling effect on police response to public safety concerns arising from 911 calls. I also recognize the difficulties these situations present to the police in that they require rapid judgment calls in situations where all the circumstances are not known, whereas the courts examine them in a tranquil setting with the benefit of hindsight. As a result, I agree it is appropriate to err on the side of caution in permitting a citizen's privacy rights to trump the objectives of public protection and safety.

Nevertheless, not every 911 call engages issues of public protection and the requirement that a search be both reasonable and necessary does not constitute an unwarranted interference with the duty of police to protect the public. It remains to analyze each situation on its own facts in an effort to balance these competing interests (para. 42).

Admissibility

The court excluded the evidence under s. 24(2) of the Charter. Although the marijuana plants and product seized by police were highly reliable evidence and society had a significant interest in having the case adjudicated on its merits, the s. 8 breach was serious; the intrusion into Jones' home had a significant impact on her Charter-protected privacy rights.

Without the evidence, the Crown's case collapsed. Jones' appeal was allowed, her convictions set aside and acquittals were entered.

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