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Digital evidence could be easily destroyed

Police were justified in making an unannounced entry because of a valid concern that pornographic files could be easily destroyed, Ontario’s highest court has ruled.

In R. v. Burke, 2013 ONCA 424, police obtained a search warrant for the accused’s apartment as part of Project Salvo, a national investigation into child pornography being shared over the “Gnutella” peer-to-peer network. Burke’s IP address had been identified as a user from whom child pornography could be downloaded.

An investigator viewed two child pornography video files, confirmed they were being offered for download by Burke’s IP address and obtained his municipal address from the Internet service provider. The Information To Obtain (ITO) also stated that the lead investigator was aware that data files were highly disposable as they could be quickly hidden, disguised on a hard drive, password protected or encrypted.

When police executed the warrant, officers kicked in the unlocked door, entered with guns drawn and yelled at Burke to get down on the floor. At least eight officers were involved, some wearing masks. Burke, a computer programmer for a high-tech firm, was at home alone watching TV. He was arrested, handcuffed, escorted outside and a search of his computer revealed child pornography. A copy of the search warrant was left in his apartment. He was charged with possessing child pornography.

In the Ontario Superior Court of Justice Burke said he was terrified, believing he could be killed if he made a wrong move. He was handcuffed, told he was under arrest, escorted outside and told police were executing a search warrant. On the basis of her specialized training and experience, the lead investigator testified, digital files could be easily destroyed or encrypted and so, as a matter of policy, she would notify the tactical unit whenever a search warrant for child pornography files was to be executed. Officers were briefed so they could determine how entry would be made based on available information.

Police decided to use a “dynamic” or mechanical entry (no-knock), rather than knock and announce, because of the ease with which the evidence could be disposed. The judge accepted the reason. She found the element of surprise was essential, given the nature of the materials sought, concluding that “(t)he risk that the computer that contained the pornographic images might be permanently compromised warranted a no-knock entry.” The search wasn’t unreasonable, no s. 8 Charter breach occurred and Burke was convicted of possessing child pornography.

Burke challenged the ruling to the Ontario Court of Appeal. He submitted, among other grounds, that the manner in which the search was carried out wasn’t reasonable.

Generally, when police execute a search warrant on a person’s home they must knock, announce their authority and the reason for entry. They may depart from the “knock and announce” principle only in exigent circumstances, including if there is a need to prevent the destruction of evidence, ensure their or the occupants safety or if they are in hot pursuit. In assessing the reasonableness of how a search was conducted, the court noted the following principles as outlined in R. v. Cornell, 2010 SCC 31:

• When police depart from the knock and announce principle, the onus rests with the Crown (police) to justify why they did so.
• The search as a whole must be assessed in light of all the circumstances.
• The Crown must prove police had reasonable grounds to be concerned about issues of officer or occupant safety or the destruction of evidence.
• The Crown must demonstrate evidence that existed at the time of the entry; it is prohibited from relying on ex post facto justifications.
• Courts must consider three things when assessing whether a search was conducted in a reasonable manner:

1.The police decision to enter must be judged by “what was or should reasonably have been known to them at the time, not in light of how things turned out to be.”

2.There is some scope available to police in deciding how they enter the premises. They “cannot be expected to measure in advance with nuanced precision the amount of force the situation will require.” The role of the reviewing court is to balance the rights of suspects with the need for safe and effective law enforcement; it is not to be a “Monday morning quarterback.”

3.An appeal court must accord substantial deference to the trial judge’s assessment of the evidence and findings of fact. “(T)he question for the reviewing judge is not whether every detail of the search, viewed in isolation, was appropriate. The question for the judge… is whether the search overall, in light of the facts reasonably known to the police, was reasonable.” Further, the courts should not attempt to micro manage the police choice of equipment.

Burke submitted that the Crown failed to adduce any evidence capable of supporting the use of a no-knock. He suggested that police needed information specific to the residence or its inhabitants to justify such an entry. Rather than requesting the assistance of the tactical unit based on an individualized assessment, he argued police relied on a blanket policy. In his view, there was no urgency, police had the information on which they acted for some time and there was no articulated concern in the ITO about violence or the presence of weapons.

As well, police had earlier used a ruse to visit Burke’s premises and knew he appeared to live alone in a one bedroom apartment on a ground floor and had no prior criminal record. He also highlighted the notion that a person’s home and computer are two most intimate places.

Justice Weiler, delivering the court’s decision, found the lead investigator’s evidence that digital files may be quickly rendered inaccessible and easily destroyed warranted, as held by the trial judge, the element of surprise accompanying a no-knock entry:

I do not agree that these individual tactics of the police made the overall search unreasonable. The police concern for destruction of evidence would not have ended with the no-knock entry. The police did not know whether the (accused) would be using his computer at the time of entry, or if he would be near his computer. They also did not know if he would necessarily be alone in the apartment.

The police had a much better chance of preventing destruction of the digital files by having enough officers present that they could simultaneously take control of the different rooms in the apartment and the suspect, as well as any possible visitors. It was also reasonable to have additional officers stationed outside the back and front of the apartment to ensure that no one entered or attempted to leave the apartment while the search warrant was being executed. The warrant did not restrict the number of persons permitted to access the location of the search (paras. 53-54).

Nor did the tactics used in executing the warrant – a swarm of heavily-armed police, some wearing masks with their guns drawn – render the search unreasonable:

In addition, I am not prepared to say that the use of drawn weapons and masks rendered the overall search unreasonable. The (accused) acknowledged that it was apparent that the persons in his apartment were the police. While he was understandably extremely frightened by the officers, there is no evidence that the police used any gratuitous or spiteful violence towards him. He was arrested and safely removed from his residence within minutes of police entry. He knew why the search was being carried out and knew that the police were authorized to carry out the search. The police left behind a copy of the warrant in the (accused’s) apartment (paras. 55).

And further:

It may be that it is standard practice for the tactical unit of the police force to conduct a forced entry with guns drawn and with some officers wearing masks. In the absence of a concern for police safety, the element of intimidation accompanying the use of masks and drawn weapons may be unnecessary and is a cause for judicial concern. However, I am sensitive to Cromwell J.’s caution in Cornell, that, “(h)aving determined that a hard entry was justified, I do not think that the court should attempt to micro manage the police’s choice of equipment”… and as Cromwell J. made it clear, the role of the reviewing court is limited to assessing whether the search overall was reasonable (para. 58).

Furthermore, police did not cause any deliberate or unnecessary damage to Burke’s property, other than minor damage to the front door, and did not seize any materials beyond those identified in the ITO. Just because Burke did not have a prior criminal record did not alleviate police concerns that he could readily destroy evidence.

As was noted in Cornell, “a person without a criminal record could destroy evidence as easily as a person with a criminal record.” Also, “the (accused’s) lack of a prior criminal record would not provide assurance to police that he would react peacefully when confronted by police officers performing a no-knock entry.”

The trial judge’s finding on the validity of police entry was reasonable. The unannounced entry was justified because of the risk that evidence could be destroyed. The no-knock entry did not violate Burke’s rights under s. 8 of the Charter. Police had legitimate concerns regarding the destruction of evidence and the elements of surprise and speed, which did not cease with entry, enabled the team to sweep all the rooms almost simultaneously and to quickly restrain the suspect.

There was no violence or unnecessary destruction of property. The search was carried out in a reasonable manner. Burke’s appeal was dismissed.