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SIGN DID NOT CREATE PRIVACY EXPECTATION


February 10, 2014
By Mike Novakowski

893 words – MR

Sign did not create privacy expectation

An owner can not establish a privacy interest in a retail shop by banning officers from entering, a British Columbia Court of Appeal panel has ruled.

In <R. v. Felger, 2014 BCCA 34> the accused owned and operated a store selling a variety of marijuana-related products. On the store window, adjacent to the door, he posted a sign which read: “No Police Officers Allowed In The Store Without A Warrant. Especially Badges #315 & 325.”

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His lawyer also wrote a letter to the police chief instructing that no officers were permitted to enter without a warrant. The chief wrote back, asking the lawyer to clarify with his client that police do not always need a warrant to enter a premises.

Acting on information that the store was selling marijuana to minors, undercover officers entered, bought marijuana on five separate days and saw others buying it. Felger was charged with six counts of trafficking and one count of possessing marijuana for the purpose of trafficking. One of his employees was jointly charged with three counts of trafficking.

A BC Supreme Court judge concluded that the officers’ actions breached Felger’s <s. 8> Charter rights and excluded the evidence; this included the information the public could buy it, the purchased marijuana itself and various observations, such as the smell of burned marijuana and both accused weighing and retrieving it from the back.

In the judge’s view, Felger, as lessee, had the right to exclude any person or persons from the premises unless they had some lawful authority to enter. The employee also had the right to enforce her employer’s policies regarding who could enter the store.

By posting a sign and sending a letter to police, Felger had limited the implied waiver to enter the store and maintained his privacy rights with respect to police. By explicitly barring police entry, the entry and observations within were an intrusion into the accuseds’ reasonable privacy interests.

Felger and his employee were acquitted.

The Crown appealed to the BC Court of Appeal. It argued that police actions did not breach any objectively reasonable expectation of privacy in the business premise and that the trial judge erred in so finding. In the Crown’s view, the accused invited the public, including undercover officers posing as members of the public, to enter the store.

Further, even if there was a Charter breach, the Crown suggested the evidence should have been admitted under <s. 24(2)>. The accused, on the other hand, submitted that an individual could preserve a general prohibition against police, uniformed or undercover, from entering private property without permission (or some other lawful authority).

Justice Garson, authoring the court’s opinion, concluded that a person cannot create a privacy interest under <s. 8> in a publicly accessible retail establishment by posting a sign prohibiting police entry. A reasonable expectation of privacy is to be determined on basis of the totality of the circumstances and involves both subjective and objective aspects.

Although Felger and his employee had a subjective expectation of privacy respecting the information the police intended to obtain – whether the store sold marijuana – their subjective intention to exclude all police wasn’t objectively reasonable. The store was open to the public and the expectation of privacy in a publicly accessible store during business hours was lower than in a dwelling place. Nor did the tort of trespass or a proprietary interest in the property necessarily establish a reasonable expectation of privacy. These are merely factors that might be relevant to consider in the totality of the circumstances.

Furthermore, the information police wanted to obtain was accessible to any member of the public who sought it out. Undercover officers bought drugs from the accused, who freely and readily engaged in conversation about drug transactions, on five different days while making various observations about the store, the accused and other patrons. Police were not intrusive and did not seek nor obtain any information that wasn’t already available to the public.

said Garson.

She continued:

<This would give too much weight to the subjective aspect of the s. 8 analysis. Privacy for the purposes of s. 8 must be assessed on an objective basis: would an objective observer construe the activities as being carried out in a private manner?

In this case and considering that s. 8 “protects people not places,” the overwhelming evidence is that the activity of selling drugs was done in a public setting. There is an element of artifice in the (accuseds’) claim to privacy in a place in which they were publicly and brazenly selling marijuana, conduct that is currently unlawful> (para. 50).

The accused did not have a reasonable expectation of privacy in conducting the business of the store, regardless of whether they had excluded police from the premises. Since there wasn’t reasonable privacy interest, there was no need to consider whether any search or seizure was reasonable.

The Crown’s appeal was allowed, the accused acquittals set aside and a new trial ordered.