Blue Line Magazine June / July 2012
The quality of a tipster's information and the amount of corroboration police undertake can make up for the anonymity of a source when considering whether reasonable grounds exist to issue a search warrant.
In R. v. MacDonald, 2012 ONCA 244 police received a Crime Stoppers tip from an anonymous source that the accused, a known gun carrier and drug dealer, had drugs and guns at his home. The tipster claimed he had seen MacDonald "flashing his gun" and that MacDonald could be found at his mother's or uncle's house and was driving a rented car.
The tipster said MacDonald was born on January 24 (no year provided), used the alias "Morrison" and lived with his surety in Etobicoke. MacDonald was described as a non-white male, 6-feet 2-inches tall, 160 pounds, with long black hair and brown eyes and a tattoo of a spider web on his hand. Police were able to confirm much of the information provided by the tipster:
- TIP - MacDonald's birthday is January 24.
FACT - Police databases confirmed MacDonald's date of birth was January 24, 1988.
- TIP - He is male, non white, 6' 2" tall and 160 pounds, with long black hair and brown eyes.
FACT - CPIC described MacDonald as male, non white, 6' 4" tall and 146 pounds.
- TIP - He has a tattoo of a spider web on his hand.
FACT - CPIC described MacDonald as having a tattoo of a spider web with flames on his left hand.
- TIP - He is a drug dealer and has drugs in his house.
FACT - In January 2006, MacDonald was found in possession of 6.58 grams of crack cocaine and was charged with possession for the purpose of trafficking. He was ultimately convicted of possession of cocaine.
- TIP - The tipster saw him "flashing his gun" and he has guns at his house.
FACT - MacDonald has a lengthy criminal record, including several serious offences of violence, including assault, robbery, assault with intent to resist arrest, aggravated assault, carrying a concealed weapon and escaping lawful custody. In January 2006 MacDonald was found with a loaded AK 47 assault rifle that had been converted to fire in fully automatic mode. He was convicted of possessing a prohibited firearm. The police affiant, a member of the guns and gangs task force, knew that it is very common for drug traffickers to arm themselves. MacDonald was bound by two separate firearms prohibition and probation orders.
- TIP - He uses the alias "Morrison."
FACT - CPIC listed "Morrison" as MacDonald's alias.
- TIP - He resides at his surety's house.
FACT - MacDonald was currently before the court, accused of aggravated assault and several related offences. The allegations pertained to a stabbing in which he allegedly chased down the victim and stabbed him in the back and slashed his face. As a result of these charges, MacDonald was bound by a recognizance requiring him to reside with his uncle under house arrest. On April 7 and 8, 2008, police observed MacDonald coming and going from his uncle's house.
- TIP - His surety's house is in Etobicoke.
FACT - MacDonald's uncle's house was located at 54 Alhart Drive, in the north-west area of Toronto near Islington Ave and Albion Rd.
- TIP - He usually hangs out at his mother's or uncle's house.
FACT - Police occurrence reports confirmed that MacDonald had resided with his mother in the east end of Toronto and had been investigated by police in that area on numerous occasions.
- TIP - He is affiliated with a gang.
FACT - No corroboration.
- TIP - He drives a rental vehicle.
FACT - On April 7 and 8, 2008, police observed MacDonald driving a vehicle registered to a car rental company. On April 8 police observed him exchanging one rental car for another.
Based on this information, police obtained a warrant to search the residence where MacDonald lived – his uncle's place. They requested night time entry be granted because they wanted to ensure enough time to gather the resources necessary to execute the warrant. In their view, any delay could result in the loss of evidence or danger to the public (ie. the firearm). Before police arrived and searched around 3 AM MacDonald had been arrested for breaching his recognizance. They found two loaded handguns. MacDonald was charged with illegal possession of the handguns, breach of recognizance and several other offences.
At trial in the Ontario Court of Justice, the judge ruled there were sufficient reasonable grounds for the search warrant. Although police might have done more, what they did do was reasonable considering that they had information of guns on the street. Officer investigation provided some reasonable corroboration of the information received from the anonymous tipster and, considering the totality of the circumstances, the warrant could have been issued by the authorizing justice. The evidence was admitted and MacDonald was convicted and sentenced to two years less a day and three years probation.
On appeal to Ontario's top court, Justice Laskin, delivering the decision, first outlined the legal framework of the requirements for issuing a search warrant.
The justice issuing the warrant must have reasonable grounds to believe an offence has been committed. The standard is one of reasonable probability. The material in support of the warrant must raise a reasonable probability of discovering evidence of a crime.
Where the application for the warrant is based largely on information coming from a confidential informant, the court must make three inquires:
- Was the information predicting the crime compelling?
- Was the source of the information credible?
- Was the information corroborated by police before conducting the search?
These are not watertight inquiries. It is the "totality of the circumstances" that must meet the reasonable probability standard.
So, for example, where, as in this case, the police rely on information coming from an anonymous source, the second inquiry is problematic. The court has no way to assess the credibility or reliability of the source. Thus, the quality of the information (the first inquiry) and the amount of corroboration (the third inquiry) must compensate for the inability to assess the credibility of the source. A higher level of verification is required
(references omitted, paras. 6-8).
Because the source's credibility could not be determined, the totality of circumstances assessment needed to focus on whether the tipster's information was sufficiently compelling and sufficiently corroborated. MacDonald suggested the tipster's information wasn't particularly compelling while the Crown contended that it was very compelling. Laskin took middle ground on this issue, finding the information "reasonably compelling."
First, although a good deal of the information was biographical and thus likely widely known, it was nonetheless very detailed. The tipster provided specific information about the (accused's) appearance, date of birth, place of residence, alias, bail status, family connections and driving practices. Second, the tipster had first-hand knowledge that the (accused) was involved with guns. He saw the (accused) "flash" a gun"
Since the source was anonymous, more confirmation than otherwise was required but "police were not obliged, before conducting the search, to confirm the very criminality alleged by the tipster."
In finding that police sufficiently corroborated the information, Laskin noted officers confirmed much of the tipster's information: police record and data banks confirmed the accuracy of the detailed biographical information given by the tipster; and police investigation also confirmed that MacDonald had in the past possessed both drugs and guns, was a known violent offender and was bound by two separate firearms prohibitions and probation orders prohibiting the possession of guns.
Although each one of these facts by themselves would likely not be sufficient to justify the warrant, MacDonald's record together with the confirmation of the detailed biographical information given by the tipster reasonably supported the trial judge's conclusion that the authorizing justice could have granted the authorization.
Night time search
Even though "night time searches of a private residence should be carried out only in exceptional cases," the appeal court found the authorizing justice in this case had a reasonable basis to authorize such a search.
"When the authorization was granted, the (accused) wasn't in custody," said Laskin. "The grounds in the affidavit provided a sound basis to allow the warrant to be executed at night."
In addition, police were not required to delay their search until day time because MacDonald was in custody.
Police were justified in not delaying the search and instead conducting it in the middle of the night. The (accused) did not live alone; he shared the residence with others. The police had reasonable and probable grounds to believe there were firearms in that residence – and even though the (accused) was in custody, he had the opportunity to contact the other occupants and tell them to hide or remove the guns. Thus, the police had a legitimate concern that if they waited to execute the warrant, they would compromise public safety and put the community at risk.
There were some factors mitigating against the intrusiveness of the search: police told MacDonald about their proposed search before they carried it out; there was no evidence that a "no knock" entry was conducted or that police had their guns drawn, or even that they frightened anyone.
The night time search wasn't unreasonable and therefore there was no s. 8 Charter breach. MacDonald's appeal was dismissed.