Criminal Law

Police need more than just a tip before a warrantless search

By Peter Small, AdvocateDaily.com Contributing Editor

The Ontario Court of Appeal (OCA) has sent a strong message to police that they can’t take anonymous tips at face value but must investigate them further, says Ottawa criminal lawyer Céline Dostaler.

“Officers need to know they can’t just take a tip from an individual without checking more information to make sure that person’s rights are being followed,” Dostaler, founder of Céline Dostaler Professional Corporation, tells AdvocateDaily.com.

The matter involved a St. Thomas, Ont., man’s convictions for possession of drugs for the purpose of trafficking. A three-judge appeal court panel overturned the conviction and found that the police search of the defendant and his home breached his Charter rights against unreasonable search and seizure and arbitrary detention.

“In our view, the trial judge erred in finding that the police had the requisite grounds to arrest the appellant and carry out the searches,” the OCA wrote. “Given that this was an anonymous tip, there was no evidence regarding the tipster’s credibility. Nor was there evidence regarding his reliability or motivation in providing the information.”

Police received a Crime Stoppers’ tip that the defendant was trafficking large amounts of cocaine, according to the ruling. The anonymous tipster stated that the accused drove a silver Audi with a certain licence number.

Police started surveillance on the defendant and saw him accompanying a man that one of the police officers believed was a drug dealer when they were both in high school, according to the ruling.

Over the next weeks, police sometimes observed the accused at addresses or with people thought to be connected to drug dealing, the decision states.

One day, police observed him engage in what they believed was a counter-surveillance technique — doing a U-turn and continuing down the street.

They saw him enter a highrise apartment building in London, Ont. where one of the units was identified by an anonymous tipster as occupied by a major drug dealer, the court ruling says. The defendant exited the building carrying a bag that appeared to be weighted.

Several weeks later, police arrested the defendant after they saw him return to the London highrise empty-handed and exit carrying a bag, according to the ruling.

Upon arrest, they searched his vehicle and person and found a small amount of marijuana and 249 grams of cocaine, according to the judgment. A subsequent search of his home turned up 20 grams of cocaine and 214 grams of marijuana.

Dostaler, who was not involved in the matter and comments generally, says police should have had stronger evidence to form the reasonable and probable grounds to justify the arrest. Being arrested can have a serious, even traumatic, impact on an individual, she says.

Some of the facts in the anonymous tip, like the model and licence number of the defendant’s car, were not particularly significant because they were publicly available, she says.

The officers didn’t do much to corroborate the key allegation of his being a drug dealer, Dostaler says. “They just took an anonymous tip at face value.”

The Supreme Court of Canada ruled in a landmark case that the information police receive from a tip must be compelling, come from a credible source and be corroborated by investigation to justify a warrantless search, Dostaler notes.

Even though the police were correct in their hunch that the defendant had drugs, it is more important that the Charter be upheld, she says.

We don’t want police officers rushing to search people’s houses based on a tip, Dostaler says.

“Searches are very intrusive,” she adds. “Police go through the individual’s things. They sometimes turn the house upside down to find what they are looking for.”

The rules requiring the corroboration of tips were put in place to prevent the state from conducting searches based on little more than suspicion, Dostaler says.

“What the court is asking is that the officers do more than just take a tip, they must continue an investigation,” she says.

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