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No-knock entry was justified


September 8, 2015
By Mike Novakowski

1438 words – MR

No-knock entry was justified

The possible presence of weapons and the accused’s inclination towards violence justified a hard entry by a police emergency response team (ERT).

In <R. v. Al-Amiri, 2015 NLCA 37> police suspected the accused of receiving illegal drugs through the mail after receiving information from a reliable informer. Postal officers intercepted a package addressed to his residence, but with a fictitious name, and found ecstasy.

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Police obtained a general warrant under <s. 487.01> of the Criminal Code along with a tracking warrant to effect a controlled delivery of the package. The general warrant allowed a controlled delivery of the package and the securing of whatever residence the package ultimately entered until a search warrant under the Controlled Drugs and Substances Act (CDSA) could be obtained.

Police believed a high risk entry by the ERT was needed because CPIC indicated Al-Amiri was “caution violent.” They also had information that he was known to carry two handguns, had threatened to shoot anyone who went to the police and was known to keep extra ammunition in his ball hat. He also had a teardrop tattoo on his face, typically indicating in the criminal culture that he had killed someone.

Once an alarm sounded indicating the package had been opened, the ERT entered the residence pursuant to the general warrant using a “hard entry.” They called out “police, search warrant”, opened the front door using a battering ram and threw in a stun grenade that emitted two bangs in quick succession.

Three suspects, including Al-Amiri, were arrested in various rooms of the home. They were ordered to lie on the floor at gun point, cross their feet and were handcuffed. ERT members were dressed in black uniforms with police shoulder flashes, black Kevlar ballistic vests with “POLICE” in white lettering on the front and back, helmets and balaclavas, and were armed with sidearms and other automatic weapons.

Once the residence was secured, all three suspects were turned over to drug section members and the ERT left within 10 minutes of making entry. A search warrant was then obtained under <s. 11> of the CDSA.

Two individually wrapped grams of cocaine, among other items, were found in Al-Amiri’s bedroom. Money, score sheets and scales were also found in the house.

Police testified in Newfoundland Supreme Court that the stun grenade, a diversionary device, emitted about one million candle watts of light and 120 decibels of sound in two bangs. The flash and sound were designed to disorient anybody near it so they could not react, disrupting by sensory overload the thought process of those contemplating hostile action against police. The effects would last only a few seconds.

The judge quashed the general warrant, finding that Al-Amiri’s <s. 8> Charter right to be secure against unreasonable search or seizure was breached. In part, this was because police didn’t made full and frank disclosure of all relevant evidence by failing to inform the authorizing judge that they intended to make a hard entry.

The judge also concluded that the manner in which the general warrant was executed was unreasonable. Police tactics were extreme. They used a forcible, hard entry, battering ram and stun grenade, and were wearing riot gear while armed with automatic military style rifles. He also found the stun tactic interfered with the bodily integrity of a person, which was not permitted under <s. 487.01(2)>.

The judge also found Al-Amiri’s <s. 7> Charter right to life, liberty and security of the person was violated by the manner of entry and a failure to obtain a Feeney warrant to arrest him. The evidence, including the 4.5 kgs. of ecstasy pills, was excluded under <s. 24(2)> and Al-Amiri was acquitted.

The Crown appealed to Newfoundland’s highest court arguing, among other things, that the trial judge erred in quashing the general warrant. The Crown also contended that the manner in which the general warrant was executed was not unreasonable and that police did not need an arrest warrant for the accused.

{Interference with bodily integrity}

Under <s. 487.01(2)>, the general warrant provision shall not be construed so as to permit “interference with the bodily integrity of any person”. Al-Amiri’s submission that the hard entry involved such interference was without merit.

“The general warrant did not purport to authorize interference with the bodily integrity of any person,” said Justice Barry, speaking for the unanimous court. “It merely dealt with the delivery of the post office package and the securing of the residence until such time as a search warrant could be obtained pursuant to section 11 of the CDSA.”

Furthermore, the onus was on Al-Amiri to establish interference with his bodily integrity, which he failed to do.

<The alleged violation of [the accused’s] Charter rights by the hard entry may be disposed of simply on the grounds that he has presented no evidence to establish that in the present case he in fact suffered any discomfort at all because of the manner in which the police entered the residence. We have only the general evidence of a police witness that the diversionary device used, a stun grenade or “flash-bang”, was a two-bang device which emitted a bright light and made two very loud noises.

The witness testified that generally the effect of the device was to disorient anyone in range of the device by creating a sensory overload and that the noise and light only lasts for seconds. [The accused] tendered no evidence which would demonstrate that he specifically suffered any actual interference with his bodily integrity.

The general nature of the evidence regarding the effect of the diversionary device is not sufficient to prove a violation of his Charter rights. In any event, if we accept he was briefly disoriented, there is no evidence of any lasting impact or interference with bodily function or health beyond the de minimus range. Therefore, the facts in this case do not support a finding that the search under the general warrant was carried out in an unreasonable manner and should be invalidated because of noncompliance with subsection 487.01(2).

That is not to say that a hard entry can never amount to execution of a general warrant in an unreasonable manner. It will depend upon the facts of each case> [paras. 51-52].

{Knock and announce}

The court described the knock and announce rule as follows.

<On the manner of execution of the general warrant, the law in Canada requires that, except in exigent circumstances, police officers must make an announcement and a formal demand to enter before entering a dwelling to execute a search warrant…

The exigent circumstances recognized regarding this “knock and announce” rule include situations in which it is necessary to enter unannounced to prevent the loss or destruction of evidence, or for the safety of officers or the general public> [references omitted, paras. 46-47].

The trial judge erred in discounting or dismissing the evidence regarding the possible presence of weapons and the indications that Al-Amiri was inclined towards violence. The reliable evidence police had concerning the possible possession of knives and guns by Al-Amiri and another suspect, and the CPIC “Caution Violence” warning, provided sufficient evidence of exigent circumstances. This concern for officer safety justified a departure from the knock and announce rule and use of the battering ram.

{Disclosure of manner of entry}

The court found that “the law does not require police to obtain prior authorization for a forcible entry even though they have the intent to execute in this fashion before obtaining a general warrant.”

The trial judge erred in ruling that “the failure to disclose this intent was a basis for finding the general warrant was not lawfully issued.” As noted in <R. v. Cornell, 2010 SCC 31>, judges are not to micromanage the police.

{Feeney warrant}

There was no need for police to obtain a Feeney warrant.

“Feeney warrants under section 529 of the Criminal Code are only required where the police do not have other lawful authority to enter premises where an arrest is carried out,” said Barry.

{s. 24(2) Charter}

The appeal court found that, even if Al-Amiri’s Charter rights were breached, the evidence was admissible under <s. 24(2)>.

The Crown’s appeal was allowed and a new trial ordered.