Confidential informer info not sufficiently credible, compelling or corroborated
If a redacted ITO (information to obtain) does not disclose sufficiently compelling and corroborated information provided by a credible informer, a search warrant issued on this basis could be found invalid and the evidence obtained subject to exclusion.
By Mike Novakowski
In R. v. Herta, 2018 ONCA 927, a man named Callahan was seen arriving at an address in Windsor, Ont. He was wanted for robbery and had a warrant for his arrest. A confidential informer (CI) told police about Callahan. The CI provided Callahan’s cell number and said that Callahan was wanted for robbery, was avoiding police by staying at different places, drove two different vehicles (including his girlfriend’s green Pontiac G6), would not stop for police if he was driving, and was staying in a specific geographical area.
A few weeks later, the CI told police that they had seen Callahan within the previous 24 hours in the east end of Windsor. At that time, the CI saw Callahan with a 303 rifle and told police Callahan had the gun for “protection” because he was in a “dispute” and the CI “knew” that Callahan would “not be anywhere without the gun.” The police obtained a tracking warrant for Callahan’s cell phone, which was tracked the following morning to a Windsor neighbourhood.
The next day, the affiant started looking for Callahan’s car in the general residential neighbourhood to where his phone had been tracked. The affiant drove by a Clover Avenue address at 6:13 am and saw Callahan’s Pontiac G6 there. Callahan was walking toward the front door of the residence. The affiant had driven by earlier and the car was not there. This suggested that Callahan had just arrived.
The affiant then prepared an ITO for a warrant to search the Clover Avenue address. Callahan’s car was still in the driveway and his cell phone was still registering in that same residential neighbourhood. The warrant was issued at 10:20 am and the Emergency Services Unit executed it.
A police K9 cleared the home and then searched for evidence. No weapons were found but drugs and drug paraphernalia were found hidden throughout the residence, including secreted inside the floor vents. Herta, who lived at the residence but was not the target of the search warrant nor known to police at the time the warrant was executed, was charged with various drug-related offences and breach of recognizance.
In the Ontario Court of Justice, the ITO was heavily redacted to prevent identifying the informer. Herta, in a pre-trial motion, went on to attack the facial validity of the search warrant. He alleged that the ITO contained insufficient grounds to support its issuance.
The trial judge, however, disagreed. The judge assessed whether the CI was credible, and whether the CI information was corroborated and compelling. The judge found the CI was “sufficiently credible,” that the information had been “corroborated by police investigation” and was “sufficiently specific to warrant police attention.” The CI said he has seen the gun within the previous 24 hours and referred to a specific type of gun (a 303 rifle). The judge found the redacted ITO contained sufficient grounds to support the search warrant. There were no Charter breaches and Herta was convicted. He received an 18-month sentence.
Herta appealed the trial judge’s ruling to Ontario’s highest court arguing he erred in dismissing the s. 8 Charter motion. In Herta’s view, the ITO was insufficient in establishing the requisite reasonable grounds to believe Calahan was in possession of a firearm at the residence.
Justice Fairburn, speaking for the unanimous Court of Appeal, first noted that police could have obtained a Feeney warrant under s. 529 of the Criminal Code to arrest Callahan. He was wanted on an outstanding arrest warrant and police believed he was present inside the home. This would have allowed the police to lawfully enter the residence but would have limited the search to arresting Callahan.
Instead, the police chose to obtain a warrant to search the entire residence to find the 303 rifle the CI said they had seen Callahan carrying the day before. This search warrant would require reasonable grounds to believe the gun was inside the home.
“The warrant to search [however] was granted without any knowledge of who owned the house, who lived there or whether Callahan had any association with that location,” said Fairburn. “In other words, there was nothing about the house that connected it to a gun. It was the CI’s connection of Callahan to a gun and then Callahan’s arrival at that location that led to the extensive search of the [accused’s] entire house for the gun that was never found.”
Here, the CI information couldn’t support the search for the gun at any location Callahan went, specifically the Clover Ave. address. Because the ITO was heavily redacted, the judge couldn’t consider the CI’s criminal record, their motivation for providing the information, the length of the CI/handler relationship, or the number of occasions the CI had provided information resulting in arrests or other outcomes. The CI’s credibility couldn’t be meaningfully assessed.
Moreover, there wasn’t sufficient corroboration to warrant a belief that Callahan was in possession of a gun at the Clover residence. Although some of the facts were confirmed – Callahan’s car, his phone number, where he was hanging out, that he was wanted for robbery and would not stop for police – this confirmatory information had nothing to do with Callahan and firearms.
“The corroborative facts related to information that many people would know, such as Callahan’s telephone number, the type of car he was driving and where he was hanging out,” Fairburn said. “In the context of this case, those facts demonstrated the CI knew or knew of Callahan. Although the CI’s confirmed knowledge of Callahan was one step toward reliability, in the circumstances of this case, particularly given the deficit in the credibility criteria, a larger step would have been beneficial.”
Finally, even if the CI information was compelling, the CI saw Callahan with a gun the day before the search; it was not sufficiently compelling that the issuing justice could have been satisfied that Callahan would take the gun into the Clover Avenue address the following day.
The CI information about the dispute and Callahan always having his gun was somewhat conclusory in nature. No “details” were provided and the CI did not disclose their source or means of knowledge.
“Was the information about the dispute mere gossip, or did Callahan tell the CI that he was in a dispute?” Fairburn questioned. “Did someone else tell the CI that fact? Was the information about Callahan carrying the purported gun at all times gossip or conjecture on the part of the CI?”
And, although an inference could be drawn that criminals who are illegally in possession of guns may have them for long periods of time, Fairburn was not convinced that just because a CI has seen someone with a gun at some point in the past, it means a search warrant can necessarily be issued for any place attended by that person in the future.
In this case, the CI did not connect the firearm to the Clover address. Nor did the redacted ITO establish where the CI saw the gun (e.g. in a house, a car, a place of business, a park or any other location).
Additionally, there was no information connecting Callahan to the residence other than the affiant seeing him walk toward its front door a few hours before the warrant was issued and there was no suggestion he had anything in his hands. There was no information about who owned, lived at or frequented that home, nor whether a firearm had ever been associated with it, or whether the police had ever investigated anyone living there or attended at that residence. If the statements that Callahan was in a dispute and would not go anywhere without the gun were compelling enough to get the warrant, “this would have turned Callahan into walking, ready-made grounds for belief.”
With the weak and conclusory nature of the information, the minimal information about CI credibility and the weak nature of the corroboration, the CI information was not of sufficient strength to support the search warrant for Herta’s residence. As a consequence, Herta’s s. 8 Charter rights were breached and the evidence was excluded under s. 24(2).
Herta held a strong expectation of privacy in his home and the search was extensive and highly invasive. The door was breached, multiple police officers were engaged, including the Emergency Services Unit, sniffer dogs were used, photographs were taken and floor vents were searched.
“Although I would place the seriousness of the state conduct at the middle of the spectrum, the impact of the breach on the Charter-protected interests of the [accused] clearly outweighs it, existing at the apex of seriousness,” Fairburn said. “Society’s interest in having an adjudication of this case on the merits is important, but so is society’s interest in ensuring that extensive searches of private residences, those involving multiple police officers, photos, dogs and more, are justified.”
Herta’s appeal was allowed, the evidence was excluded and acquittals were entered on all counts.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at firstname.lastname@example.org.