Unresolved safety concerns justified police entry into home following 911 call
The police were justified in conducting a clearance search of a residence following a 911, despite the likely possibility the call was actually false. In R. v. Serban, 2018 BCCA 382, the police received a 911 call made from a payphone about a possible break-and-enter in progress at the accused’s residence. The caller claimed to be the homeowner and said he had received a telephone call from his 80-year-old father who was alone in the residence. The caller said his father was frightened because someone was attempting to break into the basement. The caller gave his father’s name and provided a telephone number for his father, but the caller hung up when he was asked to provide his own name. The 911 call-taker phoned the father’s number but received no answer.
By Mike Novakowski
Four police officers responded to the 911 call, which was dispatched as a “priority two call.” While enroute to the call, the officers were advised the residence had been the subject of two previous tips concerning a possible marijuana grow operation. This caused concern that the break-in could be a potential “grow rip” or a home invasion, carrying with it a significant risk for violence.
When they arrived, officers conducted a perimeter search of the house and located a basement access at the rear. Police could smell fresh marijuana, heard the sounds of fans and saw equipment inside a shed attached to the house that was consistent with a grow operation. But there was no sign of a break-in.
As the police examined the rear of the residence, they met Serban. He identified himself and denied making the 911 call. When asked to produce identification, Serban re-entered the house and invited police inside. Once inside, the officers noticed the very strong smell of fresh marijuana and saw a rifle resting on a cabinet. One of the officers formed the view that a large amount of fresh marijuana was in the residence and arrested Serban for possessing it.
Serban’s wife, two young children and three elderly people, who were Romanian and did not speak English, were also in the house but they did not appear in distress. Two of the elderly occupants were able to produce their Romanian passports to confirm their identity but the other elderly man could not. As a result, the police could not confirm whether or not this man was the father named in the 911 call.
Although the officers concluded that the 911 call was likely false, they decided to search the entire residence to ensure that no one was inside who may have broken in and no other occupant of the house was in distress. The police systematically went from room to room and checked anywhere a person might be hiding. No one else was found inside the home.
The basement, however, housed a substantial marijuana grow operation with plants in various stages of growth. Serban was arrested for producing marijuana, and a search warrant was obtained and executed. The grow operation, which covered the entire basement floor, consisted of 9,738 marijuana plants.
All of the attending officers testified on a voir dire in British Columbia Supreme Court. One officer said he considered this to be a high-risk call and that suspicions about whether a call might be false do not necessarily relieve the police of their obligation to investigate as if it were a legitimate complaint.
Another officer said that grow rips sometimes involve violence if someone else is in the residence when the break-in occurs. The officers testified that although they believed there was a marijuana grow operation in the house, they conducted a relatively brief search of the residence because they continued to have unresolved safety concerns given the nature of the 911 call. And they all denied that the purpose of the search was to gather evidence.
Serban argued the police entered onto the property and conducted the search on the basis of ulterior motives, i.e. to investigate a possible grow operation. He suggested the police ought to have concluded in very short order the 911 call was false and therefore they acted unreasonably in carrying out any further search.
The trial judge found all three stages of the police intrusion – the perimeter search of the home’s exterior, the entry into the residence and the clearance search – were reasonable under the Charter. The police evidence was unequivocal that they continued to have safety concerns given the nature of the 911 call. The judge concluded the police were “entirely justified in treating the call as legitimate and requiring them to investigate.” He accepted the evidence of the officers that information they received about the possibility that the residence was being used as a marijuana grow operation “heightened their concerns that the break-in could be a ‘grow rip’ which could increase the prospect of violence.”
In his view, the search of Serban’s residence without a warrant was justified by the common law power of the police to conduct a warrantless search to protect life and safety in accordance with the principles set out in R. v. Godoy,  1 S.C.R. 311. There were no s. 8 Charter breaches and Serban was convicted of producing and possessing marihuana for the purpose of trafficking.
Serban challenged his conviction to B.C.’s highest court, arguing the clearance search was not a justifiable use of police powers because it was neither necessary nor objectively reasonable. He asserted that any legitimate concern for the occupants’ safety had evaporated before the clearance search was conducted. In his view, the police concluded the 911 call was false before the clearance search was undertaken. Thus, the police must have had ulterior motives for the search, i.e. to gather evidence in aid of an ongoing “grow op” investigation. He contended that the trial judge ought to have found that the clearance search breached his s. 8 rights and the evidence should have been excluded under s. 24(2).
Justice Fitch, authoring the unanimous Court of Appeal decision, disagreed with Serban. He first noted that “whether an unauthorized search is justified in the exercise of an established police duty is a fact-driven inquiry that will turn on the circumstances of the individual case.” He continued:
As is apparent, the [trial] judge found that the conduct of the police was motivated by a desire to fully investigate the circumstances of the 911 call, locate the subject of the call [the father] and ensure the occupants of the residence were safe. In essence, the judge concluded that the concerns of the police were honestly held and objectively reasonable on the information known to them. He did not, as the [accused] asserts, conclude that the concerns raised by the 911 call had been alleviated at the time of the clearance search.
In my view, there was a basis upon which the judge could reasonably come to the conclusion he did. The police were aware of the potential that the break-and-enter in progress 911 call concerned a “grow rip”. It bears repeating that “[a] 911 call is a distress call – a cry for help” that obliges the police to “assume that the caller is in some distress and requires immediate assistance.” The information conveyed to the investigating officers understandably elevated their assessment of the risk for violence in the residence. On their initial entry at the invitation of the [accused], they saw a weapon in the home. They knew there were children in the home. The subject of the call had not been identified when the clearance search was conducted. They were unable, due to language difficulties, to communicate with the three elderly individuals in the residence. The police believed the residence was being used by the [accused] for the commission of a drug-related offence. They were, as a consequence, justified in treating with caution the insistence of the [accused] that all was well. [references omitted, paras. 26-27]
Fitch did not accept Serban’s submission that the police had viable options to ensure the safety of the occupants short of conducting the clearance search. The police could not simply ask the occupants of the residence whether any of them wanted the residence “cleared” by the police because there was a language barrier, and police were unable to communicate with some of them.
“Further, on all that was known to them, including the criminal activity they reasonably believed was occurring inside the premises, the police were justified in not deferring to the stated wishes of those who were present and able to communicate in English,” said Fitch. “The [accused’s] alternative submission that the occupants of the residence could have been taken outside and questioned without engaging in the clearance search would have done nothing to alleviate the officers’ safety-based concerns about what might be taking place inside the residence.”
In this case, the circumstances that prompted the 911 call had not been addressed before the clearance search had been conducted. Nor did the police exaggerate safety-based concerns in an effort to justify a warrantless search conducted for the primary purpose of gathering evidence. The trial judge did not err in concluding that the police were justified in conducting a relatively brief clearance search of the residence to ensure that its occupants were safe. Since there was no s. 8 breach, there was no need to consider s. 24(2). Serban’s appeal was dismissed.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at firstname.lastname@example.org.