Police did not create exigencies

Mike Novakowski
February 01, 2016
By Mike Novakowski
Police did not anticipate their investigative steps would create the urgency necessary to justify a warrantless entry. In R. v. Phoummasak, 2016 ONCA 46 an undercover police officer purchased 4.5 grams of cocaine from a dealer at his apartment. A second purchase was arranged 10 days later but the dealer said he had to get the cocaine from his supplier and was observed entering apartment 428N at 1169 Queen Street. He rejoined the officer a few moments later and completed the sale. The dealer returned to the unit after the sale, causing police to believe his supplier lived at, or was connected to, the unit. The lead investigator believed he had grounds to obtain a search warrant for the unit after the second transaction but did not apply for one. Instead, he wanted "to confirm 100 per cent that this was the [supplier's] address." Police arranged for a third transaction with the dealer and planned to arrest him and anyone else they had reasonable grounds to believe was involved in the transaction.

Police did not anticipate their investigative steps would create the urgency necessary to justify a warrantless entry.

In R. v. Phoummasak, 2016 ONCA 46 an undercover police officer purchased 4.5 grams of cocaine from a dealer at his apartment. A second purchase was arranged 10 days later but the dealer said he had to get the cocaine from his supplier and was observed entering apartment 428N at 1169 Queen Street. He rejoined the officer a few moments later and completed the sale.

The dealer returned to the unit after the sale, causing police to believe his supplier lived at, or was connected to, the unit. The lead investigator believed he had grounds to obtain a search warrant for the unit after the second transaction but did not apply for one. Instead, he wanted "to confirm 100 per cent that this was the [supplier's] address."

Police arranged for a third transaction with the dealer and planned to arrest him and anyone else they had reasonable grounds to believe was involved in the transaction.

Officers set up surveillance in the area of the apartment building at 1169 Queen Street. The plan was that, if the dealer went to unit 428N in connection with the third transaction, police would apply for a warrant to search the apartment. One of the officers began working on the necessary paperwork before the transaction.

The undercover officer drove the dealer to the building during the transaction. The dealer went inside, returning about 10 minutes later. He and the officer drove a short distance away and the dealer produced 15.34 grams of cocaine. The officer handed over $800 and took the drugs.

The dealer left but headed toward the apartment building before he could be arrested as planned. He was apprehended in front of 1169 Queen Street, where his cell phone immediately began to ring repeatedly. Call display indicated the calls were all coming from someone named "Vic," believed to be the dealer's supplier and in unit 428N. Worried that he would become suspicious and destroy evidence relating to the drug transactions, police decided to enter the apartment immediately to "freeze" it until a search warrant could be obtained.

Officers used a fob the dealer had to enter and knocked on the door of 428N. No one answered but they heard noises coming from inside. They used a key, also seized from the dealer, to enter and saw Phoummasak coming back in from the balcony. A police officer outside saw Phoummasak throw three baggies containing drugs off the balcony. Police secured the unit, arrested Phoummasak, obtained a search warrant to search the apartment and found various drugs and more than $5,000 cash.

At his trial in the Ontario Superior Court of Justice Phoummasak argued that the search was unlawful and therefore breached s. 8 of the Charter. He contended that the exigent circumstances exception to the warrant requirement under s. 11(7) of the Controlled Drugs and Substances Act (CDSA) did not apply because police created them by operational decisions made during the ongoing investigation. The judge rejected this submission, finding police could not have obtained a search warrant after the second transaction but acted lawfully in entering and securing the premises. Convictions on drug charges followed.

Phoummasak again argued before the Ontario Court of Appeal that police created the exigent circumstances upon which they relied to justify the warrantless entry, an argument the court rejected.

{Exigent circumstances}

Justice Doherty, speaking for the court, described exigent circumstances and their application to s. 11(7) this way:

Generally speaking, the police cannot enter a residence to search for evidence without prior judicial authorizations. There are a few exceptions to that rule. Section 11(7) of the CDSA recognizes the common law exigent circumstances exception to the warrant requirement. It provides:

A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.

Section 11(7) of the CDSA, unlike other statutory provisions providing for exigent circumstances searches (e.g. Criminal Code s. 529.3), does not define exigent circumstances. In my view, the phrase has the same meaning in s. 11(7) of the CDSA as it does in the Criminal Code provisions and at common law.

Exigent circumstances under s. 11(7) exist if (1) the police have grounds to obtain a search warrant under s. 11 of the CDSA (the probable cause requirement) and (2) the police believe, based on reasonable grounds, that there is imminent danger that evidence located in the premises will be destroyed or lost if the police do not enter and secure the premises without delay (the urgency requirement) [references omitted, paras. 11-12].

Phoummasak agreed that both conditions for a warrantless search existed. However, he argued that police manufactured the exigencies and therefore could not rely upon them to justify the search. In his view, police had the necessary grounds to get a search warrant after the second drug transaction but instead chose to proceed with a third transaction. Police knew their plan would place officers outside of the apartment door and its occupant would be suspicious when the dealer did not return and would take steps to destroy any evidence.

Although "police cannot orchestrate exigent circumstances by creating the requisite urgency through a preplanned course of conduct," Doherty concluded that didn't happen. Even though officers had grounds to obtain a search warrant for Phoummasak's apartment prior to the third drug purchase, they did not anticipate their investigative steps would create the urgency to justify entry without a warrant.

"The existence of reasonable grounds to obtain a warrant does not preclude the existence of exigent circumstances," said Doherty. "To the contrary, probable cause is a prerequisite to the existence of exigent circumstances...

<[E]vidence that the police had grounds to obtain a search warrant, but did not obtain a warrant and instead proceeded with other investigative measures, can in some situations afford evidence that the police set out to create exigent circumstances to justify entry into a premise without a warrant. If that inference is drawn, the circumstances are not exigent and cannot justify a warrantless search or entry.

The inference that the police set out to avoid the warrant requirement does not flow automatically from the fact that the police could have obtained a search warrant for the premises before the exigent circumstances arose. The specific circumstances of each case must be examined.

In this case, the officer in charge explained his reasons for not applying for a warrant before the third drug transaction. That explanation was not unreasonable. [The dealer] had made two sales to the undercover officer, one unconnected to unit 428N and the other connected to unit 428N.

The officer in charge reasonably believed that it was prudent to seek further confirmation of the connection of the apartment to the drug transactions before seeking a warrant. The reasonableness of the officer's approach is evident from the trial judge's opinion that the police did not have reasonable grounds to obtain a search warrant before the third transaction.

Although I disagree with her assessment, this difference of judicial opinion suggests that the officer's decision to seek further confirmation of the connection between unit 428N and the drug transactions before applying for a warrant was a reasonable one> [paras. 15-17].

Neither the arrest in front of the apartment building nor the unanswered telephone calls to the dealer were anticipated by the police. Officers did not create "an artificial situation of urgency."

Phoummasak's appeal was dismissed.

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