Monday 31 October 2011

Can the police seize anything suspicious when they don’t have a search warrant?

When the police wish to search a home, they must first get a search warrant to do so. However there are exceptions to this rule. This article deals with a case where the exception might apply.

Two Toronto police officers were justified in entering a crack mom’s “disgusting” apartment, despite not having a warrant, to save her children from harm, a prosecutor said at a trial of a young woman. Crown attorney (prosecutor) Laura Bird told Ontario Superior Court Justice Faye McWatt on October 25th 2011, “Far from being criticized, the two young officers ought to be commended. They rescued two babies from a crack house.”

Kristin Bailey, the lawyer for the defence had argued that the police officers had improperly entered Taranjit Grewal’s apartment on Kipling Avenue on February 23rd 2010 without first obtaining a search warrant to do so.

The 28-year-old crack addict had pleaded guilty to corrupting the morals of her two little girls, one two years old, the other 15 months, but she pleaded not guilty to illegally possessing a .22-calibre handgun. The police officers found the gun on the top of her fridge when they were in her kitchen. She told the police that the pistol was left by an acquaintance on her fridge, where it sat for three months without her noticing it.

Quite frankly, I find it hard to believe that she didn’t notice the gun on the top of her fridge. Firstly, why would anyone leave a handgun on the top of a fridge? Since it is highly unlikely that the owner of the gun would have a permit to possess the gun in the first place and anyone who is a friend of this crack addict would know that her apartment could easily be subjected to a search of some kind and if that happened, the gun would be seen right away by the police. I think that the handgun is her own handgun and she was too stupid to hide it so that it couldn’t be seen in plain sight by any adult (including police officers) walking in the kitchen.

Grewal’s lawyer was trying to exclude evidence of the gun, arguing that it was obtained in violation of her client’s rights against unreasonable search and seizure. In other words, the police didn’t first obtain a search warrant to conduct a search in the woman’s home.

To begin with, the police wouldn’t have originally got a search warrant before entering her apartment because they weren’t looking for stolen goods or drugs or even a gun. The only reason why the officers were at the door was because Grewal phoned Telehealth Ontario for medical advice and lost consciousness on the line, prompting Telehealth Ontario operator on the phone to call 911.

When the police have a genuine suspicion that something is amiss in a home, they have the right to enter the home without a search warrant or without the permission of the person who opens the door when they knock on the door and that person opens it for them.

In any case, Constables De Melo and Michael Thomas testified that Grewal let them in. She on the other hand testified that, on the contrary, one of them had his foot in her door thereby preventing her from closing the door and she felt she had no other choice but to let them in. Her defence lawyer, Kristin Bailey put forth a rhetorical observation to Ontario Superior Court Justice Faye when she said at the trial; “It does not make sense that Ms. Grewal would say “okay,” then open the door and then let them in.

The lawyer then said, “Children crying and someone acting suspicious does not give police the authority to enter a private dwelling.”

I disagree and so did the judge. Remember that when Grewal originally made the call, she suddenly became unconscious and the line went dead. The police were aware of this and had the right to be concerned, especially when they heard a small child crying. Admittedly, simply because a child cries, it doesn’t mean that there is something wrong in the home. But when you consider that the police were told that the woman became unconscious while talking on the phone, the apartment appeared to be strewn with garbage, cat feces was on the floor and drug paraphernalia was in plain sight and a child was crying, was in my opinion, enough to convince the police officers that something was definitely wrong in that apartment and that they should go into the apartment to make sure that nothing is wrong. After all, the child could be suffering from a drug overdose as far as they were concerned. This is not to say that is what happened in this case but children have died from drug overdoses given to them by drug addicted mothers in the past.

The Court also heard that Grewal’s two children were neglected and hungry. Now if the police had not entered the apartment, what would have become of the children then? Doctors later tested the girls’ hair and found they had been exposed to cocaine for several months.

However, this article isn’t really about the condition of the apartment, the mother and her children as it is really about whether or not the police had the right to seize the gun and use it as evidence against the woman whom they charged with being illegally in possession of a restricted weapon, to wit; the handgun when the police didn’t have a search warrant.

The matter has been adjourned until November 28th in which time Justice McWatt will make her ruling on the issue of the illegal possession of the handgun at that time.

There are two issues that the judge has to deal with; the lack of a search warrant and the handgun seen in plain sight.

Entering premises without a warrant

The judge can refer to cases that have been before other judges in the Ontario Superior Courts in the past and one of them is R. v. Pillay, a 2004 criminal case. In that case, the police treated the information they initially obtained as a situation involving exigent circumstances requiring immediate attention and potentially involving life or injury.

Mr. Pillay appeared at the partially opened balcony door and was told by Sergeant Ceballo to go around and open the front door. Mr. Pillay did this. It is agreed that while Mr. Pillay acquiesced in the entry of the police into the apartment, he did not give express consent.

Accordingly, the police entered the premises without the express consent of the accused and without a warrant, and conducted a search to ensure that no one was in need of assistance. They did this because of the urgency of the situation before investigating elsewhere to verify the tip and before conducting outside investigations to provide the basis for obtaining a search warrant. No one in the apartment was in need of assistance and no body was found. However, in the initial search the police found blood on a mattress in a locked room. The police continued their investigation, to ascertain if anyone needed assistance in another location.

The officers testified that they did not give any thought to obtaining a search warrant; they felt that these were exigent circumstances, because there could have been someone alive in the apartment. They felt they would be neglecting their duty if they did not to go in and check the tip. The trial judge said at the trial, “I accept that they were acting in complete good faith.”

It is well established at common law that the investigation and prevention of crime is a duty of the police. In my view, the police were clearly acting in pursuit of their common law duty to investigate and prevent crime when they observed the narcotics in Grewal’s apartment while standing at her door and then subsequently entered her apartment and questioned Grewal.

I believe that the trial judge hearing the Grewal case will come to the same conclusion that the two officers who entered her apartment did so in complete good faith because they had a reasonable belief that someone in the apartment may be in need of assistance. Their belief was justified. The two babies were in need of immediate assistance.

The judge in the Grewal case can justifiably conclude that the initial entry was justified because the officers had the authority to enter Grewal’s residence due to exigent circumstances. The police have a duty pursuant to the common law (former court rulings) and under section 42 of the Police Services Act, to protect and preserve life. Thus, the police would have been derelict in their duty had they not entered the residence even without a warrant to do so.

Handgun seen in plain sight

The issue is whether Grewal had a reasonable expectation of privacy with respect to the handgun on the top of her refrigerator which was visible to the police officers when they were in Grewal’s kitchen

If the defence states that that a search was warrantless and with a warrantless search being prima facie unreasonable, the Crown bears the burden of proving that the search was reasonable.

The acceptable standard for search and seizure operations in Canadian law has generally been premised on reasonable and probable cause, with or without judicial preauthorization (search warrant) depending on the need for immediate attention.

The key factor in this case was that the handgun was in plain sight.

If it can be establish that the handgun in Grewal’s apartment would have been seen in plain sight by anyone walking into the kitchen and looking at the refrigerator and when I say anyone, this includes police officers who act under the authority of section 42 of the Police Services Act, and have entered the apartment because of their belief that someone is in need of assistance, then the handgun can be seized and used as evidence against the person accused of being in possession of the handgun.

In R. v. Grunwald, a 2010 British Columbia Court of Appeal case, the court said in part; “A police officer is not required to avert his eyes when he comes across something suspicious that is unrelated to the investigation he is pursuing.”

In conclusion

I believe that the judge will rule that the evidence that the gun was on the woman’s fridge can be used against her to prove that she was in possession of it even though the police entered the apartment without a search warrant.

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