Reasonable grounds & the experience factor

Mike Novakowski
December 03, 2013
By Mike Novakowski
Police officers are entitled to use their training and experience in determining whether grounds for arrest exist. In R. v. Messina, 2013 BCCA 499 crime reduction unit (CRU) plain clothes members saw the accused meet four people at four different locations over a one hour period. They approached Messina's car on foot, entered the vehicle for approximately 30 to 60 seconds, exited and then immediately left the area

Police officers are entitled to use their training and experience in determining whether grounds for arrest exist.

In R. v. Messina, 2013 BCCA 499 crime reduction unit (CRU) plain clothes members saw the accused meet four people at four different locations over a one hour period. They approached Messina's car on foot, entered the vehicle for approximately 30 to 60 seconds, exited and then immediately left the area as follows:

  1. A police officer saw a disheveled man standing on the sidewalk smoking a cigarette and looking left and right. Messina then drove up very slowly and stopped in front of him. The man got in, the car circled the block and then the man left and walked into an alley. The officer believed what he saw was consistent with his experience dealing with dial-a-dope operations, having investigated 20-30 suspected drug trafficking incidents, including 10 which led to dial-a-dope trafficking arrests. As a result, the CRU supervisor – a 17 year police veteran with extensive experience in dealing with drug addicts, dial-a-dope traffickers, surveillance projects and street level drug sales – authorized surveillance.

  2. After driving to a gas station and talking on his cell phone, Messina drove to a location where a "skinny" female got into his car. She came from and returned to what was described as looking like a "crack shack." The officer concluded that the woman's thin build supported an inference that she was a drug user.

  3. Messina picked up a male and dropped him off at a McDonald's nearby, then drove to another location where a man briefly entered the car.

Based on his own observations, those communicated by other CRU members and a discussion with the supervisor, the officer arrested Messina. A strip search at the station yielded two rocks of crack cocaine totalling 0.5 grams.

In British Columbia Provincial Court both the officer and CRU supervisor testified that the meetings between Messina and the four people were pre-arranged. Each approached on foot, got into the car, sat there for 30-60 seconds, then exited and immediately left the area. Despite both officers independently forming reasonable grounds for the arrest, the judge relied only on the arresting officer's testimony, finding Messina's s. 9 Charter rights were breached because the reasonable grounds necessary to arrest were lacking.

The judge concluded that the arresting officer "was operating from behind lenses which cast everything he saw in the light of being connected to a dial-a-dope operation" and had a "mindset during the investigation which permits only inferences supporting their theory of guilt to be entertained."

The grounds here did not add up to the critical mass necessary to elevate them to reasonable and probable grounds for arrest... The evidence was sufficient to provide the officers with a reasonable suspicion but otherwise amounted to little more than 'acting on a hunch based on intuition and experience'.

Since there were insufficient grounds to justify the arrest, the strip search was unreasonable. The evidence, however, was admitted under s. 24(2) and Messina was convicted of possessing cocaine for the purpose of trafficking.

Messina then argued before the BC Court of Appeal that the trial judge erred in admitting the evidence under s. 24(2). The Crown, on the other hand, contended that the arrest was lawful under s. 495(1) of the Criminal Code – and even if it wasn't, it contended it was properly admitted.

Justice Stromberg-Stein, delivering the court's judgment, agreed with the Crown, finding Messina wasn't unlawfully arrested and the search incidental to arrest was lawful.

The arrest

Under s. 495(1) of the Criminal Code a police officer may arrest without warrant a person they have reasonable grounds to believe has committed an indictable offence. Determining the existence of reasonable grounds requires a two-part test.

The first step requires the arresting officer to have a subjective, personal belief that there are reasonable grounds for the arrest. The second part requires objective justification for the officer's subjective belief. In assessing objective justification, the consideration is whether a reasonable person, "standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest." The test requires reasonable probability or reasonable belief and not proof beyond a reasonable doubt (reference omitted, para. 20).

An officer's experience can be included in assessing the objective grounds for arrest.

(The case law) authorities leave no doubt that (the arresting officer's) interpretation of (the accused's) actions must be considered in light of his experience and training as a police officer and a CRU officer. This is what the Crown refers to as the "experience factor,'' which requires that an officer's reasons for arrest be assessed from the vantage point of a prudent, reasonable and cautious police officer, similarly experienced as the arresting officer, rather than an untrained civilian (para. 24).

Furthermore, the CRU supervisor had relevant extensive experience and made observations that were completely ignored by the trial judge. She too had independently formed reasonable grounds to arrest Messina.

Both (officers) have specialized skill and training that the trial judge failed to take into account when deciding whether there were objectively valid grounds for arresting (the accused). These were experienced officers who had been involved in numerous drug investigations. Their observations, considered in their totality, were sufficient to support objectively reasonable grounds that (the accused) was engaged in drug dealing. They did not have to rule out all other possible innocent explanations for (the accused's) conduct or each event. They were entitled to use their training and experience to conclude from the totality of their observations that (the accused) was trafficking in drugs from his car (para. 26).

The trial judge failed to assess the objective reasonableness of the officers' belief, considering a reasonable person "standing in the shoes" of the arresting officer and the CRU supervisor.

"The trial judge adopted a layperson's view of what an experienced officer would deduce in the circumstances, focusing on the officer's subjective belief, when her task was to consider whether there was an objective basis for the officers' subjective belief," said Stromberg-Stein. "In my view, the observations made of (the accused's) actions, when considered having regard to the experience of the officers involved, objectively support the officers' belief in the existence of reasonable grounds."

The arrest was lawful and the search that yielded the evidence was reasonable, having been obtained incidental to the arrest. Since there were no Charter breaches, s. 24(2) wasn't engaged.

Messina's appeal was dismissed and his conviction upheld.

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