December 4, 2023 By Mike Novakowski
Alberta’s top court has found that a guest at a motel did not have an objectively reasonable expectation of privacy when his name and phone number were provided to police, upon request, by the manager.
In R. v. Neumann, 2023 ABCA 200, Winnipeg Police received information from a confidential informer that an unknown man in a red truck with an Alberta licence plate would be bringing methamphetamine from Alberta to a hotel in Manitoba. The police set up surveillance at the motel and observed a red Ford F-350 truck with an Alberta licence plate arrive. A man entered the motel and returned to the truck a short time later, then driving it to a gas station. A large grey truck parked next to the red truck and police saw a quick hand-to-hand transfer of a brown satchel from the driver of the red truck to the driver of the grey truck, an exchange that was “consistent with” drug trafficking. Upon returning to the motel, the man left the red truck carrying a large hockey-size black duffle bag into a suite. Police then spoke to the motel manager and asked for the man’s name and telephone number. The manager opened a locked drawer, removed the motel registration documentation, advised the man’s name was “Jacob Neumann”, and provided them with his cell phone number.
The following day, Winnipeg officers contacted the Edmonton Police Service and obtained the particulars of Neuman’s height and weight, and a photograph – which matched the description of the man they had been watching – as well as his cell phone number, which was the same number provided by the motel manager. The police also saw a red van attend the motel. A woman got out of the van and entered Neumann’s room. She left about nine minutes later, re-entered the van and drove away. As a result, police believed Neumann was travelling across Canada for the purpose of distributing methamphetamine to other drug traffickers.
An Information to Obtain (ITO) was drafted and police obtained a 30-day tracking warrant for Neumann’s cellphone under s. 492.1(2) of the Criminal Code—to track its movements—and a transmission data recorder warrant under s. 492.2—to identify the times and durations of telephone calls and text messages transmitted by cell phone and the telephone numbers that communicated with the cell phone. Neither the substance or contents of those communications was sought. The results of these warrants led police to obtain additional warrants, including a vehicle tracking warrant, and conduct further surveillance. Calgary Police became involved and found the red truck parked at a car dealership for custom retrofit work. A Calgary officer spoke to the dealership manager and asked if Newmann’s telephone number was on file. The manager provided a telephone number that was different from the number provided to the Winnipeg Police.
The Charter does not require a warrant to obtain this very basic information necessary to obtain a warrant.
Calgary Police obtained another tracking device warrant and transmission data recorder warrant for the second cell phone number and further investigation culminated in the execution of a s. 11 Controlled Drugs and Substances Act search warrant on Neumann’s truck. When police stopped the truck in Alberta, they found 46.9 kg of powder cocaine and 47.5 kg of crystal methamphetamine in the cargo bed of the truck, as well as documents corroborating Neumann’s travel patterns. Neumann was arrested and charged with possessing cocaine and methamphetamine for the purposes of trafficking.
At trial in the Alberta Court of Queen’s Bench (now known as King’s Bench), the judge concluded that the police inquiries at the motel and car dealership for a telephone number and name were searches because they sought to obtain further details about Neuman’s “lifestyle and personal choices”. The judge held Neumann had a subjective expectation of privacy in his name and cell phone number that was objectively reasonable in the totality of the circumstances. Since a warrantless search is prima facie unreasonable, and there was no legal authority to justify the seizure of this information, obtaining Neumann’s name and cell phone number at the motel and at the car dealership breached s. 8 of the Charter. Without this information, the first ITO was insufficient and the subsequent ITOs and warrants could not stand, resulting in further – nearly continuous – violations of the Charter. All of the evidence obtained in the police investigations after the initial s. 8 breach, including the drugs, and all the records and data obtained from the tracking device and transmission data recorder warrants, was excluded and Neumann was acquitted.
The Crown appealed the trial judge’s ruling to the Alberta Court of Appeal arguing that Neumann did not have a reasonable expectation of privacy in his name and cell phone number and therefore no warrant was required to obtain this information. And the three member panel of the Court of Appeal agreed. In applying the totality of the circumstances test in assessing whether Neumann had a reasonable expectation of privacy in this information, it stated:
We conclude that given the subject matter of the police search, limited to only collecting a name and cell phone numbers for the purpose of seeking judicially authorized tracking and transmission data warrants, Mr. Neumann’s subjective expectation of privacy was objectively not reasonable.
Mr. Neumann’s name and cell phone numbers, without more, did not constitute core biographical data which revealed intimate and private information or intimate details of his lifestyle and personal choices infringing his dignity, integrity and anonymity. The trial judge noted the police wanted Mr. Neumann’s name and telephone number, “to reveal patterns of travel, communication and other information”, but this was only after they obtained a judicially authorized warrant to do so. His s. 8 Charter right to be free from unreasonable search or seizure was not breached. The Charter does not require a warrant to obtain this very basic information necessary to obtain a warrant. [paras. 103-104, reference omitted]
As a result, the Crown’s appeal was allowed, the evidence seized was admissible and a new trial was ordered.
Mike Novakowski is Blue Line’s case law columnist.
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