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Clear nexus between suspect and crime justifies detention


March 6, 2014
By Mike Novakowski

Footprints in the snow justified a detention by providing the necessary link between a crime and the suspects.

In <R. v. Witvoet, 2014 ABCA 77> a stolen cube van’s owner and his employee located the vehicle by following its tire tracks in the newly fallen snow and called police with its location. Officers and a police dog followed a set of fresh footprints through the snow for 12 minutes from the van to a house and saw a woman stick her head out a side door and quickly pop back in when she saw them.

Becoming suspicious, two officers approached and saw a man (Witvoet) and the woman (Davis). They asked them who they were and if they lived there and owned the home. Receiving no response, they told them they were being detained for the stolen vehicle. The man began fleeing down the stairs, followed by the woman. The officers threatened to use the police dog (“City Police, stop right there, I’m sending in the dog”) and Witvoet came out of the house.

Concerned that this might be a fresh break and enter or possibly an interrupted home invasion – there had been about 20 in the city over the past three months – an officer followed Davis down the stairs as she disappeared from sight. At the bottom, he saw her try to close a door to a room and asked her who was in the room. “No one,” she responded. When the officer went in, he saw another man hiding in a closet, two shotguns within easy reach and numerous other weapons and ammunition. After back up arrived the man was taken into custody.

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Police subsequently obtained a search warrant for the house and seized more than 100 stolen items and numerous weapons. Both Witvoet and Davis, who were charged, lived in the basement suite but the other man did not.

Both the accused argued in Alberta Provincial Court, among other things, that their <ss. 8 and 9> Charter rights had been breached and sought the evidence police seized to be excluded under <s. 24(2)>. The judge ruled that police had reasonable grounds to suspect they were criminally implicated in the stolen vehicle investigation and had not been arbitrarily detained under <s.9>.

<Given the fact that police had tracked a set of footprints in the freshly fallen snow, directly from a stolen vehicle to the door of the residence of the accused, it is the court’s conclusion that at that point the officer had authority to detain the accused Davis for investigative purposes at the threshold of the residence. The police also had the power to detain for investigative purposes, the accused Witvoet at the door to the residence.

At this juncture both officers were lawfully investigating the criminal offence of theft of a motor vehicle and they had properly tracked footprints from the stolen vehicle directly to the door of the residence. The officers were entitled to detain the accused Davis and Witvoet at the threshold of their residence for investigative purposes> (2012 ABPC 125, at para. 20).

She did, however, conclude that the officer’s warrantless entry into the house infringed <s. 8>. His belief that a home invasion was in progress was unreasonable and merely a hunch. There was no evidentiary foundation to support a concern of a potential home invasion in progress or a break and enter.

When the information obtained from the warrantless entry was excised from the ITO, the judge held there wasn’t reasonable grounds to support the legality of the search warrant but admitted the evidence under <s. 24(2)>. Police acted in good faith, despite acting on a hunch.

Both the accused were convicted of unauthorized possession and careless storage of the shotguns, possession of a weapon obtained by crime and seven counts of possession of stolen property. Davis was also convicted on two counts of possessing a weapon contrary to an order.

Witvoet and Davis challenged their convictions before the Alberta Court of Appeal arguing, among other grounds, that the judge erred in finding no Charter breach and by not excluding the evidence under <s. 24(2)>.

{Detention}

The appeal court concluded that the trial judge did not err in determining that <s. 9> had not been breached.

<(T)here was a clear nexus between the investigative detention of the (accused) and the recent criminal activity, namely the theft of the cube van and the set of footprints clearly leading from the stolen vehicle, now abandoned, to the residence where the (accused) were living,> the court found.

{<S. 24(2) Charter>}

Witvoet and Davis submitted, among other things, that police were not acting in good faith because the trial judge found their belief that a home invasion was in progress to be unreasonable and merely a hunch. The appeal court disagreed.

Although the trial judge found their belief in a home invasion wasn’t reasonable, she did not find the concern simply a pretext for entering the house.

<What the trial judge described as a hunch arose in circumstances where clearly the van had been stolen by someone in the house, the two people in the house refused to respond to innocuous questions and they moved away from the peace officers after being advised they were being detained for the theft of the van.

“Even if the precise nature of the peace officers’ concerns were not well founded, their suspicions were reasonable in those circumstances and sufficient to support the trial judge’s conclusion that they acted in good faith.>

The appeal court rejected other s. 24(2)> submissions, concluding the trial judge did not improperly apply the principles or rules of law regarding an analysis, nor make an unreasonable finding.

She was owed deference and the appeals were dismissed.


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