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WARRANTLESS SEARCH OF HOME

R. v. Feeney, [1997] 2 SCR 13 CLII

 

The police, during a murder investigation in 1991, entered the accused’s house (an equipment trailer) without permission.  When they received no answer at the door, they entered, roused the accused, touched his leg, ordered him to get up and took him to the front of the trailer for better lighting.  The police arrested him after seeing blood on his shirt.  Following a caution with respect to the right to counsel but not the right to immediate counsel, the police asked the accused a couple of questions which he answered.  The accused’s shirt was seized and he was taken to the police detachment where, before the accused had consulted with counsel, further statements and the accused’s fingerprints were taken.  The police seized cash, cigarettes and shoes under a warrant obtained on the basis of the initial search of the trailer (the shirt and shoes), the initial interview  (the shoes) and the later interview at the detachment (the cash under the mattress).


The accused was convicted of second degree murder and his appeal was unanimously dismissed.  At issue here are whether the police violated the Charter right to be secure from unreasonable search or seizure (s. 8) and the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right (s. 10(b)) in their investigation of the accused and, if so, what evidence, if any, should be excluded under s. 24(2).

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 Under the pre-Charter common law, a warrantless arrest following a forced entry into private premises is legal if:

(a) the officer has reasonable grounds to believe that the person sought is within the premises;

(b) proper announcement is made;

(c) the officer believes reasonable grounds for the arrest exist; and

(d) objectively speaking, reasonable and probable grounds for the arrest exist.  


Except in exigent circumstances, police should give notice of presence by knocking or ringing the doorbell, give notice of authority by identifying themselves as law enforcement police officers and give notice of purpose by stating a lawful reason for entry.  Furthermore, before forcing entry, police should, at minimum, request admission and have admission denied.


The subjective requirement for arrest was not met and its absence rendered the arrest unlawful even under the pre-Charter common law.  


The arresting officer did not believe he had reasonable grounds to arrest prior to the forcible entry.  The police officer’s testimony and the fact that he did not arrest the accused until after he saw the blood-stained shirt support this conclusion.  An objective standard cannot be exclusively relied on because its addition to the requirements for valid arrest at common law did not displace the subjective requirement.  Indeed, it would be inconsistent with the spirit of the Charter to permit a police officer to make an arrest without a warrant even though he or she does not believe reasonable grounds for the arrest exist.

The question of whether, objectively speaking, reasonable and probable grounds to arrest existed prior to the entry into the trailer is open to review by this Court.  The trial judge erred in law by considering an irrelevant factor (the preservation of evidence) and by failing to explain why the officer in charge was incorrect in his conclusion that grounds to arrest did not exist prior to entry into the trailer.

The objective test is that a reasonable person, standing in the shoes of the officer, would have believed that reasonable and probable grounds to make the arrest existed.  Any finding that the subjective test is not met will generally imply that the objective test is not met, unless the officer is to be considered to have an unreasonably high standard.  An arrest cannot be made solely for the purpose of investigation but, if grounds exist on a subjective and objective basis, the fact that police intend to continue the investigation and do so does not invalidate the arrest.  The objective test was not met regardless of the officer’s views.

The Landry test for warrantless searches, essentially a balancing between aiding the police in their protection of society on the one hand and the privacy interests of individuals in their dwellings on the other, no longer applies.  It must be adjusted to comport with Charter values which, notwithstanding the high value on the security and privacy of the home at common law, significantly increase the importance of the legal status of the privacy of the home.  In general, the privacy interest now outweighs the interest of the police and warrantless arrests in dwelling houses are prohibited.


Generally a warrant is required to make an arrest in a dwelling house.  There are exceptions with respect to the unreasonableness of warrantless searches for things.  A warrantless search will respect s. 8 if authorized by law, and both the law and the manner in which the search is conducted are reasonable.  


In cases of hot pursuit, the privacy interest must give way to the interest of society in ensuring adequate police protection.

An arrest warrant alone is insufficient protection of the suspect’s privacy rights.  Even though the Criminal Code is silent on prior authorization of a search for persons, warrantless searches for persons are not permissible.  Privacy rights under the Charter demand that the police, in general, obtain prior judicial authorization of entry into the dwelling house in order to arrest the person.  If the Code currently fails to provide specifically for a warrant containing such prior authorization, such a provision should be read in.  While the absence of such a provision could have a profound influence on the common law power of arrest, its absence cannot defeat a constitutional right of the individual.  Once a procedure to obtain such prior authorization is created, the concern that suspects may find permanent sanctuary in a dwelling house disappears.


Warrantless arrests in dwelling houses are in general prohibited.  Prior to such an arrest, the police officer must obtain judicial authorization for the arrest by obtaining a warrant to enter the dwelling house for the purpose of arrest.  Such a warrant will only be authorized if there are reasonable grounds for the arrest, and reasonable grounds to believe that the person will be found at the address named, thus providing individuals’ privacy interests in an arrest situation with the protection this Court has required with respect to searches and seizures.  Requiring a warrant prior to arrest avoids the ex post facto analysis of the reasonableness of an intrusion and invasive arrests without a basis of reasonable and probable grounds are prevented, rather than remedied after the fact.

The protection of privacy does not end with a warrant; before forcibly entering a dwelling house to make an arrest with a warrant for an indictable offence, proper announcement must be made.  An exception occurs where there is a case of hot pursuit.  Whether or not there is an exception for exigent circumstances generally has not been fully addressed by this Court.

The arrest was unlawful both because the requirements for a warrantless arrest under s. 495 of the Code were not met, and, in any event, the police cannot make warrantless arrests in private dwellings unless exceptional circumstances, which were not present here, exist.  Consequently, the entry into the trailer and the search and seizure of the accused’s clothing violated s. 8 of the Charter.

The requirement that a person be informed of his or her s. 10(b) rights begins upon detention or arrest.  Detention under s. 10 of the Charter occurs when a peace officer assumes control over the movement of a person by a demand or direction.  Here, detention began once the officer touched the accused’s leg and ordered him to get out of bed.  The accused was not given any caution at this time and his s. 10(b) rights were therefore violated.


The accused was not given adequate opportunity to secure counsel.  He was not given access to a telephone before being questioned; the police gave him the caution in the trailer, where no telephone existed.  The police simply asked him whether he understood his rights, and given an indication that he did, proceeded to ask him questions about the blood on his shirt and his shoes.  These police actions violated the accused’s s. 10(b) rights.

The police came to know about the cash, the cigarettes and the shoes as the result of violations of ss. 8 and 10(b) of the Charter and would not have had grounds for a warrant supporting the second search without the violations.  Consequently, the search and seizure under the warrant also violated s. 8.  It would be artificial to distinguish the constitutionality of the second search from that of the initial entry into the trailer.

Fingerprinting as an incident to a lawful arrest has been held not to violate the Charter.  Here, however, the arrest was unlawful and involved a variety of Charter breaches.  Compelling the accused to provide fingerprints in this context was a violation of s. 8 of the Charter for it involved a search and seizure related to the accused’s body for which, absent a lawful arrest, there is clearly a high expectation of privacy.  Procedures that are taken incidental to and following an unlawful arrest and which impinge on the arrestee’s reasonable expectation of privacy breach s. 8 of the Charter.

The first step in the trial fairness analysis is to consider whether the particular evidence is conscriptive or non-conscriptive.  Evidence will be conscriptive when an accused, in violation of his or her Charter rights, is compelled to incriminate him- or herself at the behest of the State by means of a statement, the use of the body or the production of bodily samples.


The statements in the trailer, at the detachment, and the fingerprints were conscriptive and therefore inadmissible as affecting the fairness of the trial.  The bloody shirt, the shoes, the cigarettes and the money were not conscriptive evidence, and this evidence, while its admission would not affect trial fairness, must be analysed in light of the second and third branches of the Collins test which may require its exclusion.

The violations were very serious in the present case.  One of the indicia of seriousness is whether the violations were undertaken in good faith.  One indication of bad faith is that the Charter violation was undertaken without any lawful authority.  In light of a pattern of disregard for the accused’s rights, the seizure of the shirt, shoes, cigarettes and money was associated with very serious Charter violations.  The serious disregard for the accused’s Charter rights suggests that the admission of the evidence would bring greater harm to the repute of the administration of justice than its exclusion.

Jim O'Neil, LL.B.

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