rights violated during vehicle search

FTA Lawyer · March 11, 2008

Actually it is the same issue, the admissibility of evidence. You said it yourself, that something like a body might be admissible whereas something else may not depending on whether a judge feels it meets the test of yada yada. If there is no itemized list for everyone to see of what would be admissible and what wouldn't, there is no fixed standard.
I realize that judges must make subjective decisions when it comes to the law. If they didn't, we wouldn't need them. I also think the public has the right and duty to take them to task if they feel their judge's actions don't reflect the publics standards. Around here, whenever a judge brings down a sentence that goes some way to reflect those standards and comes within howitzer range of a maximum, invariably they are slapped down and told they don't reflect the will of Parliament or precedent. Who's law is it anyway? Parliaments? The judiciaries? I thought it belonged to the people.

With the possible exception of God, everyone needs periodic reminders that maybe they aren't quite as good as they think they are.

You should be careful what you wish for...you may get an absolute rule that all evidence, no matter what it is, and no matter what the situation, gets tossed following a warrantless vehicle search.

In any event, I need to clarify myself I suppose. The fixed standard in these circumstances is the fact of a charter breach. Maybe benefit of the doubt is owed to police in a new situation or one that is unsettled in law. As for searching a car beyond plain view without a warrant, every cop knows he or she is acting unlawfully.

The only uncertainty is in whether the courts might still let the evidence in notwithstanding that it was obtained illegally. So the way I see it, the uncertainty in this analysis favors the state because they can get a judge to ignore their breach of the law depending on the circumstances.

What your take on this is, is that police should knowingly breach the Charter, and take their chances...because their job is simply providing public safety. My take is the reverse. I for one think the police should always follow the law...even though it means that they are acting at a disadvantage to those who don't have to follow the rules (i.e. criminals).

The alternative is nobody follows the rules...on either side...and I don't like that idea one bit. Ask societies whose police do not follow the laws of the land if they have "public saftey" in the way I think you would like to define it...

FTA

Wilber · March 11, 2008

What your take on this is, is that police should knowingly breach the Charter, and take their chances...because their job is simply providing public safety. My take is the reverse. I for one think the police should always follow the law...even though it means that they are acting at a disadvantage to those who don't have to follow the rules (i.e. criminals).
The alternative is nobody follows the rules...on either side...and I don't like that idea one bit. Ask societies whose police do not follow the laws of the land if they have "public saftey" in the way I think you would like to define it...

My take isn't that simplistic at all. My take is that the rules are subject to interpretation, both by the police and the judiciary. The police responsibility for public safety is a first person on the ground one that has to deal with chaos as it is happing. The court's isn't, so it is not surprising that there are occasionally differences or downright disagreement when it comes to interpretation. My take is that the judicial system shouldn't be surprised if the public disagrees with them as to what constitutes a greater disrepute to justice and they should take that into consideration when they make future judgments, the same as they do the will of parliament or precedent. To do otherwise is to increasingly lose the respect of the public which is real problem for the courts today.

FTA Lawyer · March 11, 2008

My take isn't that simplistic at all. My take is that the rules are subject to interpretation, both by the police and the judiciary. The police responsibility for public safety is a first person on the ground one that has to deal with chaos as it is happing. The court's isn't, so it is not surprising that there are occasionally differences or downright disagreement when it comes to interpretation. My take is that the judicial system shouldn't be surprised if the public disagrees with them as to what constitutes a greater disrepute to justice and they should take that into consideration when they make future judgments, the same as they do the will of parliament or precedent. To do otherwise is to increasingly lose the respect of the public which is real problem for the courts today.

I agree with basically everything that you have just said here...for many situations that the police will be called upon to address in the "heat of the moment."

For this specific situation though, there was no exigent circumstance, the accused was already detained and there was no reason not to take the time to get the warrant...not to mention that there was no need for the police to try to interpret an ambiguous rule.

They knew they needed a warrant and intentionally conducted an illegal search, or they didn't know the law regarding vehicle searches and were incompetent to do their jobs. Either way, I support the exclusion of the evidence here and am disappointed that so many do not seem to share my views on an individual's right to be free from unlawful state search and seizure.

FTA

guyser · March 11, 2008

FTA and jbg, can you comment on the case in I believe it was Arizona , not that I have a link but anyway...

Trucker, pulled over , consents to search and the police find $500,000 hidden in panels in the back of his cab. Cops ask trucker, he says he has no idea what it is there for nor why. Claims he doesnt know.

Police take the money and tell him if he can prove he owns it...come and claim it. This is about the third or fourth time I have herd of this happening.

So my Q's are...

1) What right to keep the money do the police have? (4th amdmt)

2) Why reverse onus ? (guilty until proven innocent?)

thoughts? Yes I know it is US law....

Edited March 11, 2008 by guyser

FTA Lawyer · March 12, 2008

FTA and jbg, can you comment on the case in I believe it was Arizona , not that I have a link but anyway...
Trucker, pulled over , consents to search and the police find $500,000 hidden in panels in the back of his cab. Cops ask trucker, he says he has no idea what it is there for nor why. Claims he doesnt know.

Police take the money and tell him if he can prove he owns it...come and claim it. This is about the third or fourth time I have herd of this happening.

So my Q's are...

1) What right to keep the money do the police have? (4th amdmt)

2) Why reverse onus ? (guilty until proven innocent?)

thoughts? Yes I know it is US law....

In Canada the police can seize money or property that they believe is the proceeds of crime...half a million hidden in a transport truck with a driver who says he has no idea where it came from would usually qualify without much more.

If you are the lawful owner of property that has been seized in this manner, the Criminal Code provides a procedure whereby you must give sworn evidence proving your lawful ownership and then it will be returned.

As far as the police keeping it...strictly speaking they don't. The property is held by the Crown. In order to have the property formally forfeited to the Crown, a hearing must also take place so that a judge will make the final determination.

I suspect that most US states have a similar procedure, but I really wouldn't know.

FTA

jbg · March 13, 2008

So my Q's are...
1) What right to keep the money do the police have? (4th amdmt)

2) Why reverse onus ? (guilty until proven innocent?)

thoughts? Yes I know it is US law....

Consent to a search is a major exception to the Fourth Amendment. This was established in modern times in the Supreme Court's 1974 Schneckloth v. Bustamonte decision.

mcqueen625 · March 13, 2008

Why bother
Makes one wonder when anyone they can find who wants to go into policing anymore is finally going to give up and just put in time till they can collect a pension.

EDIT:

The title of this thread was changed to be more descriptive of the discussion topic.

The title used to be: "Another beaut from so called intelligent people"

The problem is not the police, it is the bleeding-heart appointed and unaccountable judiciary that have been put in place primarily by the Liberals from amongst the Liberal faithful, and these appointees have been using a flawed document commonly referred to as the Charter to justify all kinds of silly decisions. These appointees seem to have no trouble making law, and if they had any common sense they would be throwing out large portions of this flawed document as making absolutely no sense in the real world. Maybe Trudeau was smoking too many of those funny cigarettes when he dreamed up this flawed document that has taken justice and common sense out of our justice system? Any document that confers more rights to the criminal element than it does to either law enforcement of the victims of crime is a flawed document, and this Charter as it was written and interpreted does just that.

Since the judiciary seems so fond of making law without any accountability to anyone. Maybe it is time that our justices are elected to office for specific terms, and with term limits, at least it would make them conscious of how those decision take the justice out of our justice system and make it into what it has become, a joke, for most. The only people who do not seem to see no flaws in this Charter are the Liberals, the NDP and of course lawyers and the appointed judges right across this country. Could it be that all of these entities need a dose of common sense?

guyser · March 13, 2008

The problem is not the police, it is the bleeding-heart appointed and unaccountable judiciary that have been put in place primarily by the Liberals from amongst the Liberal faithful, and these appointees have been using a flawed document commonly referred to as the Charter to justify all kinds of silly decisions. . Maybe Trudeau was smoking too many of those funny cigarettes when he dreamed up this flawed document that has taken justice and common sense out of our justice system? Any document that confers more rights to the criminal element than it does to either law enforcement of the victims of crime is a flawed document, and this Charter as it was written and interpreted does just that.

What rights do criminals have that you or I dont?

The problem at least as respects this thread, is that the police are ignoring rights, rights you and I have in equal parts.

Dont see something in plain view....get a warrant. It is that easy.

Edited March 13, 2008 by guyser

Wilber · March 13, 2008

Dont see something in plain view....get a warrant. It is that easy.

Maybe, maybe not. Depends on the individual judge.

guyser · March 13, 2008

Maybe, maybe not. Depends on the individual judge.

No Wilber, that is not open to interpretation. It is cut and dried.

I heard about another good one yesterday. Police pulled over a woman because he saw her take a pill while stopped at a stoplight.

She is trying to have the cop reprimanded.

FTA Lawyer · March 13, 2008

Maybe, maybe not. Depends on the individual judge.

Maybe the evidence will be admissible in spite of the breach...maybe not.

You seem to keep ignoring the point that it is a breach of our constitution and therefore illegal conduct by the police regardless of the decision that the judge makes at trial regarding admissibility.

So, if the police choose to act illegally, then why should judges and defence lawyers take the heat when the evidence that they unlawfully collect is ruled inadmissible?

FTA

Wilber · March 14, 2008

No Wilber, that is not open to interpretation. It is cut and dried.
I heard about another good one yesterday. Police pulled over a woman because he saw her take a pill while stopped at a stoplight.

She is trying to have the cop reprimanded.

What I am saying is that whether a warrant is issued or not is up to the individual judge who receives the application. It isn't necessarily, just "that easy".

Peter F · March 14, 2008

What I am saying is that whether a warrant is issued or not is up to the individual judge who receives the application. It isn't necessarily, just "that easy".

and that's the point of judges being the ones to issue warrants. It shouldn't be up to individual officers of the crown to decide whose property they will enter search and possibly sieze. Thus the step of an officer presenting to the judge his reasons for such action and the judge determining wether those reasons are valid or not. Warrants are good things and shold not be relegated to the dustbins of history.

guyser · March 14, 2008

What I am saying is that whether a warrant is issued or not is up to the individual judge who receives the application. It isn't necessarily, just "that easy".

Sorry Wilber, I misunderstood.

If telephone warrants are valid here (I dont know) then the application is easy, as it is done on the phone. I would think a reasonable measure must be reached by the cop for it to be granted and really I cant think of a reason not to issue it. Now that said, the judge would have to have some kind of waryness about the cop to refuse. Maybe not believing the cop , bad prior relationship.

blueblood · March 14, 2008

Maybe the evidence will be admissible in spite of the breach...maybe not.
You seem to keep ignoring the point that it is a breach of our constitution and therefore illegal conduct by the police regardless of the decision that the judge makes at trial regarding admissibility.

So, if the police choose to act illegally, then why should judges and defence lawyers take the heat when the evidence that they unlawfully collect is ruled inadmissible?

FTA

If the cops wanted to, could they keep the guy pulled over on the road for the time it takes to get a warrant? I know it's dirty, but is it legal?

Wilber · March 14, 2008

Sorry Wilber, I misunderstood.
If telephone warrants are valid here (I dont know) then the application is easy, as it is done on the phone. I would think a reasonable measure must be reached by the cop for it to be granted and really I cant think of a reason not to issue it. Now that said, the judge would have to have some kind of waryness about the cop to refuse. Maybe not believing the cop , bad prior relationship.

You would think so but that is speculation on your part. If the issuing of a warrant is more or less automatic, one wonders what it really does to protect rights other than the right to drive around with cocaine in your vehicle for the purpose of distribution as long as you keep it out of sight.

In this case it is pretty obvious that the police knew who this person was and what he was up to before they stopped him. Cops don't normally pull people over because their tail lights aren't on. At least around here they don't.

guyser · March 14, 2008

You would think so but that is speculation on your part. If the issuing of a warrant is more or less automatic, one wonders what it really does to protect rights other than the right to drive around with cocaine in your vehicle for the purpose of distribution as long as you keep it out of sight.

Free movement rights, there is no right to drive around w cocaine. Just free to drive around.

In this case it is pretty obvious that the police knew who this person was and what he was up to before they stopped him. Cops don't normally pull people over because their tail lights aren't on. At least around here they don't.

Thats naive.

The police do in fact pull over people for tail lights, all the time. They pull people over for as little as no light above the licence plate.

Its legal and within a cops mandate to do so . Criminals are stupid and leave things in plain sight....ergo people get caught.

Wilber · March 14, 2008

Thats naive.
The police do in fact pull over people for tail lights, all the time. They pull people over for as little as no light above the licence plate.

Well, from the number of vehicles I see driving around with lights out, they aren't doing a very good job. Besides this guy probably didn't even have his lights on, he was likely just driving in after dusk with his daytime running lights. See people do it all the time and wonder if they ever look at their instrument panel.

It's even more naive to think the police don't know who the local drug dealers are. The lights just gave them an excuse to pull him over. On what grounds do you think they could have got a warrant to search further? The tail lights? The open liquor? In spite of the courts, they put a dent in this guys business and took the drugs off the street. If that is all they can accomplish to try and clean up that neighbourhood so be it, but it is far more than the court was prepared to do.

guyser · March 14, 2008

It's even more naive to think the police don't know who the local drug dealers are. The lights just gave them an excuse to pull him over. On what grounds do you think they could have got a warrant to search further? The tail lights? The open liquor? In spite of the courts, they put a dent in this guys business and took the drugs off the street. If that is all they can accomplish to try and clean up that neighbourhood so be it, but it is far more than the court was prepared to do.

Exactly.

The police can use the fact that light is out to pull a car over. No one is arguing against that since it is legal to do so.

The police would not need a warrant to search if they have probable cause. Perhaps the car reeked of pot, smelled of alcohol any number of things. They would not need a warrant to search if PC is the reason for the search.

And taking the drugs off the street is not the point. The violation of rights is. The police could find tons of stuff if they were allowed to search anywhere anytime. Thankfully they cant.

Wilber · March 14, 2008

The police could find tons of stuff if they were allowed to search anywhere anytime. Thankfully they cant.

Which they have neither the time nor reason to do.

jbg · March 14, 2008

The problem is not the police, it is the bleeding-heart appointed and unaccountable judiciary that have been put in place primarily by the Liberals from amongst the Liberal faithful, and these appointees have been using a flawed document commonly referred to as the Charter to justify all kinds of silly decisions.

I am sure that most judges, from day to day, are trying to do their job, and are not "bleeding hearts". The problem is that political correctness has seeped into all aspects of life in the Western world. This is not purely a Canadian judicial problem.

Speaking as a New York lawyer, I see all kinds of wack-job decisions, many if not most totally apolitical. The real problem is that judges' pay has not kept pace with inflation or legal salaries and the best minds are no longer going into the judiciary.

My $0.02.

Oleg Bach · March 14, 2008

I am sure that most judges, from day to day, are trying to do their job, and are not "bleeding hearts". The problem is that political correctness has seeped into all aspects of life in the Western world. This is not purely a Canadian judicial problem.
Speaking as a New York lawyer, I see all kinds of wack-job decisions, many if not most totally apolitical. The real problem is that judges' pay has not kept pace with inflation or legal salaries and the best minds are no longer going into the judiciary.

My $0.02.

When are we going to get some judges that actually judge - men and woman that will sit on the bench and say - that is wrong - and THAT is right..instead we have dweebs that follow the policy of those that appoint them...none actually make a judgement - I knew we were screwed when an old lawyer proudly said of a stolen inheritance - a theft that was assisted by the courts - quote "It may be immoral but it is legal" - Call me a dumbie but I was brought up with the dellusion as you were - if it was immoral or evil - it was wrong and wrong was supposed to lose the contest - but not these days - evil and wrong rule...so live with it ... we have suffered de-evolution in our courts...just today they released most of the jerks that were involved in the killing of Jane Creba on Younge Street...I expected it...

These guys all had crimminal records ----BUT - yesterday they denied bail of a person who had no crimminal record - and who had good family support -the reason that the courts denied this guy bail was "to keep the public confindence in the judical system" - what the hell - if you are going to be truthful about that - then deny the ones with records bail - not the ones with a clean slate - what a terrible and clever reverse - seems that "let right prevail" is a fraud.

FTA Lawyer · March 15, 2008

If the cops wanted to, could they keep the guy pulled over on the road for the time it takes to get a warrant? I know it's dirty, but is it legal?

Not dirty at all actually, when one assumes that the police have reasonable and probable grounds (note to guyser, we don't call it probable cause, but it basically means the same thing) to belive the person has committed or is about to commit an offence or the person has been caught committing an offence, then he can be arrested without warrant (Criminal Code s. 495...also applies to Provincial Offences).

No problem keeping the person under arrest while you then use those same reasonable and probable grounds to get a warrant to search the car, because s. 495 also allows the police to keep someone under arrest for the purposes of determining his identity, securing and preserving evidence of the offence, and preventing the repetition of the offence or the commiting of a further offence.

If police grounds are not enough for an arrest under the Criminal Code (as would be the normal case in a typical traffic stop) then they can still hold a person under investigative detention, but for limited duration and if they don't have reasonable grounds in short order, then they have to let the person go. Pretty much if the cop is giving a speeding ticket, he's got as long as it takes to write the ticket. If no grounds at that point, there will be no arrest, no search warrant, should be no search and the citizen is entitled as of right to be sent on his way.

Anyone who wants an interesting read on the SCC take on these issues, click below.

R. v. Mann

I think this is my favorite paragraph (mostly because it supports what I've been arguing here...

Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.

FTA

jbg · March 15, 2008

No problem keeping the person under arrest while you then use those same reasonable and probable grounds to get a warrant to search the car, because s. 495 also allows the police to keep someone under arrest for the purposes of determining his identity, securing and preserving evidence of the offence, and preventing the repetition of the offence or the commiting of a further offence.

Sounds like holding someone under arrest at the scene while some Judge ditzes around with paperwork is a lousy allocation of resources.

Wilber · March 16, 2008

After over 45 years of driving which includes every Canadian province and over 20 US states I have never had my vehicle searched by the police. Makes me wonder what people get up to and why they are so sensitive.