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CASE LAW – Preservation concern may justify night search

The disposable nature of items sought in a search warrant can provide the grounds necessary to authorize the night time search of a residence.


September 15, 2014
By Mike Novakowski

The disposable nature of items sought in a search warrant can provide the grounds necessary to authorize the night time search of a residence.

In <R. v. L.V.R., 2014 BCCA 349> a police investigation involving sexual offences against two youths resulted in the accused’s arrest. While in custody awaiting his first court appearance, police sought a warrant to search his home during the night for a number of items, including computers and devices capable of storing or recording digital photographs, hard copy photographs and firearms and weapons. The reasons the officer provided in the grounds for the ITO to justify a night search were:

The accused was in custody for a court appearance and the evidence sought was required prior to his appearance;
Police officers were maintaining continuity of the residence; and
*The officer was working her last night shift and would not be available for a few days; in this time there would be an opportunity for loss of evidence if the warrant wasn’t executed prior to the accused being released from custody.

Furthermore, the justice of the peace was informed the house would be empty during the proposed hours of the search. The warrant was granted setting the hours for search as 11:35 pm to 5:30 am. Police seized a computer and various storage devices containing photographs of a naked female and a video of a male and female having sexual intercourse. Charges were laid, including several related to sexual offences.

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During a voir dire in BC Supreme Court the officer testified, in part, that she believed the accused would go before a judge within 24 hours of his arrest and might be released. If freed, she feared he would remove or destroy evidence.

The accused maintained that all evidence seized under the warrant should be ruled inadmissible under <s. 24(2)> of the Charter because the search and evidence seizure violated his rights under <s. 8>. Among his arguments was that the ITO did not meet the statutory requirements of <s. 488> of the Criminal Code justifying a night search.

The judge noted that in exercising the search, police did not rouse residents in the middle of the night and that the issuing justice knew the house would be unoccupied. The judge concluded there were reasonable grounds for a night search, referring to three factors in upholding the warrant: the evidence could be being quickly destroyed, the matter was very serious and it was certain no one would be at home when the warrant was executed. The evidence was admitted and the accused convicted of several offences.

The accused challenged the ruling before the BC Court of Appeal, arguing the judge erred in finding a valid basis for the night search. Under <s. 488> of the Criminal Code, a search warrant issued under <s. 487 or 487.1> may only be executed by day (6 am to 9 pm) unless the justice is satisfied that there are reasonable grounds for it to be executed by night (9pm to 6 am), those grounds are included in the ITO and the warrant authorizes the search by night.

The accused argued that since he would not have been released from custody before the morning, there was no realistic concern he could destroy evidence because police were maintaining continuity of his house. In his view, maintaining continuity of a residence as constituting sufficient reason for a night search was related only to police convenience. It did not provide reasonable grounds for a night search. His possible release did not pose any realistic threat to the investigation since police were watching his residence. Nor did the officer’s un-availability after her shift serve as a valid basis since she wasn’t needed to execute the warrant.

Justice Saunders, writing the court’s opinion, agreed that the “the officer’s future availability to search the premises generally would not rise to a reasonable ground for a night search in circumstances in which a co-investigator is, presumably, capable of conducting a search.”

Maintaining continuity of the residence and the concern as to the timing of the accused’s release, however, related to preserving evidence, a concern that could provide a proper basis for a night search. In deciding whether there were reasonable grounds, Saunders stated:

<What is reasonable depends on all the circumstances. It is a practical, common-sense question. Good faith on the part of the affiant is important in answering this question, but subjective belief does not provide the whole answer. The criteria in s. 488 contains an objective aspect: in the circumstances known at the time the search warrant was issued, was it reasonable that the search warrant be executed at night?

Section 488 does not set “necessity” as the basis for a night search warrant, but rather engages the situational term “reasonable grounds.” A night search may be reasonable in one situation but not in another, depending upon a host of factors. The gravity of the substance of the investigation, the likely occupancy of the residence and degree of disruption to privacy the search may cause, the nature of the items that may be found in a search and the needs of the investigation are but a few> (paras. 24-25).

The court found the trial judge did not err in upholding the warrant because of the three factors he identified: (1) the fact no one was home during the hours proposed for the search, (2) seriousness of the matters under investigation and (3) the disposable nature of the items sought.

“While the police still required specific authorization to search at night (<s. 488>), the absence of any resident is highly relevant and the judge was correct to consider the diminished degree to which privacy interests would be affected in the circumstances by a search at night,” said Saunders. “Likewise, the seriousness of the offence was a proper consideration.”

As for the disposable nature of the items sought, there were two connected reasons the police officer gave in the ITO for seeking the night search: (1) the need for police to maintain continuity of the residence and (2) the possibility the accused would be released.

<The investigating officers considered that the items referred to in the search warrant were of sufficient importance to justify the continuing police presence to establish continuity and the police officer completing the ITO correctly understood the burden on the police to bring (the accused) before the Provincial Court without delay.

The officer had no way of knowing if and when (the accused) might have been released. In the event he was released he could be expected to travel immediately to his residence, risking destruction of items in the residence unless the police were present to prevent this from happening. All of this meant that the investigation required a continuing police presence at the residence until the search began.

However, until it began the police officers securing the residence were effectively an idling motor. Such idling might have been of no moment had the residence been occupied and had there been a real risk of rousing sleepers, but such wasn’t the case.

In my view, the relative waste in police personnel simply waiting for the crack of day, with no corresponding benefit to any resident, is a factor supporting the judge’s ruling. I cannot say the judge erred in finding the officer’s concern, when the ITO was sworn, provided reasonable grounds for a night search in all the circumstances> (para. 28).

The court rejected the accused’s submission that the search warrant was invalid in authorizing a night search. His appeal was dismissed and his convictions upheld.