Case Law Discussion

[jolinar of malkshor]

Ok....this is how it will work. I will post a situation that happened. We can discuss the issues of the case and make predictions as to how the trial judge ruled.

After some discussion I will post the decision of the trial judge and further dicussion can take place. This will be repeated for the appeal process aswell. Anyone interested.....have at er.

Oh....and to make this a good discussion, refrain from looking up the case and seeing what actually happened.

CASE 1

Two plaincloths police officers were proactively policing a neighbourhood school hot spot. The two plaincloths officers observed the accused ("Grant") "walk by in a suspicious" manner, stare at the plaincloths officers in an an unusual manner and "fidgeted" with his pants and coat which looked suspicious. The two plaincloths police officers asked a uniformed officer to stop and chat with "Grant".

The uniformed officer stood in Grant's path, told him to keep his hands out front and began asking questions. The two plaincloths officers stood behind the uniformed officer. Grant was initially only asked for identification, but later asked if he had ever been arrested and whether he had anything he shouldn't have on him.

Although initially saying "no", he did admit to having a small amount of marijuana. When asked if he had anything else, he divulged that he had a loaded revolver. Grant was arrested, the revolver was seized from a waist pouch and he was charged with five firearm offences.

At trial, Grant introduced a motion to exclude the gun from evidence because his rights under the Charter had been violated (unlawful detention).

Do you think trial judge excluded the evidence?

[CaptainCrunch]

I think we need more information, because we don't know if he had been fully arrested, or read his rights at that point. However at that point the officers acted on his suspicious behavior, and investigated further. Going by this case he hadn't been arrested and had the right not to talk to the officer. The attorney privledge wasn't in affect here as well. The cops asked him if he had anything on him and he admited to dope and then after further questions admited to a loaded gun. At this point I don't think that his rights were violated based on what you told me, but I think a transcript of the conversation would be in order.

[Savvy27]

I can't fairly consider this case until I am positive there are no christmas trees in the courtroom.

[jolinar of malkshor]

Originally Posted by CaptainCrunch

I think we need more information, because we don't know if he had been fully arrested, or read his rights at that point. However at that point the officers acted on his suspicious behavior, and investigated further. Going by this case he hadn't been arrested and had the right not to talk to the officer. The attorney privledge wasn't in affect here as well. The cops asked him if he had anything on him and he admited to dope and then after further questions admited to a loaded gun. At this point I don't think that his rights were violated based on what you told me, but I think a transcript of the conversation would be in order.

Unless otherwise indictated in the situational text, please assume that all procedures were followed correctly. So in this case, once the individual was arrested, he was afforded all his rights. The question at hand is "was he unlawfully detained before the arrest occured".

[REDVAN]

I would say yes he was unlawfully detained. All 3 officers had no need to confront the man, the uniform would do just fine. In addition, he was asked by the uniformed officer to keep his hands out- highly unusual procedure if he is not already suspected of something and just being questioned randomly.

I am not an expert or anything, so maybe it is standard procedure when questioned by a cop to hold your hands out, but I would refuse if asked for no reason.

[Table 5]

so I'm going to assume that jolinar posted this because the judge excluded the evidence, and he wants to rant against political correctness or something...

but anyway, I think part of being a good officer is being able to read when people are acting weird and suspicious (after all body language can speak volumes), and then further investigate the matter. it's a file line, but do i blame a police officer for following through on a hunch, especially when in the end it turned out to be accurate? not really.

[Gugstanley]

Guilty as charged on all counts. He was free to leave at any time. The fact that he is stupid doesn't mean charges should be dismissed. Officers can stop and talk with people. Good officers can read a persons body language and turn it into something else.

[Jayems]

Originally Posted by REDVAN

I would say yes he was unlawfully detained. All 3 officers had no need to confront the man, the uniform would do just fine. In addition, he was asked by the uniformed officer to keep his hands out- highly unusual procedure if he is not already suspected of something and just being questioned randomly.

I am not an expert or anything, so maybe it is standard procedure when questioned by a cop to hold your hands out, but I would refuse if asked for no reason.

Any pedestrian can be stopped and asked for identification by a police officer. If he decideds to admit he has marijuana, well, thats his problem.

Its like the people you see on COPS. They have dope in the car... they know it.. the cops know it... yet they still permit the cops to search their car...

[Scarlett's on my Desktop]

Originally Posted by REDVAN

I would say yes he was unlawfully detained. All 3 officers had no need to confront the man, the uniform would do just fine. In addition, he was asked by the uniformed officer to keep his hands out- highly unusual procedure if he is not already suspected of something and just being questioned randomly.

I am not an expert or anything, so maybe it is standard procedure when questioned by a cop to hold your hands out, but I would refuse if asked for no reason.

He was asked to keep his hands out because he was fidgeting with them in his jacket. In order to avoid something from happening, the officer asked him to keep them out front. Further, he wasn't unlawfully detained because he was just being asked questions and he readily answered them. It's his own fault that he admitted to the marijuana and the loaded gun. The officers obviously noticed something was up with the guy.

[CaptainCrunch]

Originally Posted by REDVAN

I would say yes he was unlawfully detained. All 3 officers had no need to confront the man, the uniform would do just fine. In addition, he was asked by the uniformed officer to keep his hands out- highly unusual procedure if he is not already suspected of something and just being questioned randomly.

The number of officers and whether they were uniformed or not has nothing to do with his rights, and asking a person that they were talking to because of suspicious behavior in not unusual. Combine that in that he wasn't being randomly questioned according to what we've seen, but approached because he was acting in a unusual manner around the police and fidgeted with his pants and clothing like he was hiding something. The police do have a right to investigate this behavior. Combine that with the fact that they didn't physically search the man means that he had the right to walk away at any time since he technically wasn't under arrest. He willingly answered the police questions and volunteered that he was carrying a loaded firearm.

Originally Posted by Devils'Advocate

I am not an expert or anything, so maybe it is standard procedure when questioned by a cop to hold your hands out, but I would refuse if asked for no reason.

Are you kidding, if your talking to a cop who suspects you of something because your fidgeting with your clothing like your hiding something, or course they're going to be asked to keep your hands in plain sight. And suddenly jamming your hands into your pocket or your jacket is probably going to get you a one way face first trip to the concrete. And they already had a reason to at least question this guy, and they didn't need a warrent since he wasn't under arrest.

I'd say the cops acted properly based on what we see here.

[Scarlett's on my Desktop]

The trial judge probably did exclude the evidence because I've heard some great stories of how well our justice system works. >>>Sidebar>>> A guy had three counts of identity fraud against him while he was in Canada illegally. His wife is Canadian and was pregnant with his child. They allowed him to stay in the country, received permanent residence status, and then further obtained Canadian citizenship while he was waiting for court! THEN, after the judge told him how serious the crime was in this day and age, he slapped him with a $500 FINE! AND THEN ASKED HOW LONG HE WOULD NEED TO PAY IT! Guy asked for 6 months, and he got 6 months! Ahhhhh, the beauty of it!

[Kjesse]

I'm going to go with yes. I find it odd he didn't get charged with a drug offence. Asking for ID is permissible. As soon as the officers knew he had drugs on him, the officers should have known they were detaining him in a criminal investigation, and at that point, his rights should be read, etc.

On the other hand, once he admitted to the marijuana, the officers had the right to arrest and search him, and they would have found the gun in any event.

I'm curious how this played out.

Moral of the Story: If you must break the law, STFU.

[vanisleflamesfan]

Yes, he was unlawfully detained. I believe that the fact that there were three officers there, making bizarre demands "TOLD him to keep his arms out front", as well as demanding identification and answers to questions, would indicate what is called "psychological compulsion". Basically, the suspect is made to believe that he has no choice but to comply with the officers (whereas he in fact DID have a choice). In the case of psychological compulsion, detention is not predicated on a spoken threat or physical restraint. So yes... he legally COULD have walked away at any time, but the officers made him feel or believe that he could not. Psychological compusion is in the laws protecting both self-incrimination and search and seizure. The (gun) evidence was gathered in an way that violates the charter. He consented to the search or the questions because he felt that he had no other choice.

I would imagine that the trial judge excluded the evidence.

[CaptainCrunch]

Originally Posted by vanisleflamesfan

Yes, he was unlawfully detained. I believe that the fact that there were three officers there, making bizarre demands "TOLD him to keep his arms out front", as well as demanding identification and answers to questions, would indicate what is called "psychological compulsion". Basically, the suspect is made to believe that he has no choice but to comply with the officers (whereas he in fact DID have a choice). In the case of psychological compulsion, detention is not predicated on a spoken threat or physical restraint. So yes... he legally COULD have walked away at any time, but the officers made him feel or believe that he could not. Psychological compusion is in the laws protecting both self-incrimination and search and seizure. The (gun) evidence was gathered in an way that violates the charter. He consented to the search or the questions because he felt that he had no other choice.

I would imagine that the trial judge excluded the evidence.

Boy based on that, we really need to change the charter, way to handcuff the police.

[jolinar of malkshor]

Originally Posted by CaptainCrunch

Are you kidding, if your talking to a cop who suspects you of something because your fidgeting with your clothing like your hiding something, or course they're going to be asked to keep your hands in plain sight. And suddenly jamming your hands into your pocket or your jacket is probably going to get you a one way face first trip to the concrete.

I'd say the cops acted properly based on what we see here.

Also known as the "Rapid Asphalt De-acceleration manouver".

[vanisleflamesfan]

Originally Posted by CaptainCrunch

Boy based on that, we really need to change the charter, way to handcuff the police.

Well, I know that in cases like this, where a guy is clearly breaking the law, and has a loaded weapon, it seems a bit stupid. However, you need to remember that these laws are in place to protect INNOCENT people. Remember that you are innocent until proven guilty.

Illegal search and seizure is a very dicey issue. Totalitariam regimes are really quite good at restricting the liberties of their citizens through fear, and an invasive, illegal (in North America) search, is a good way to instill fear of the power of the police state. In order to maintain freedom, privacy, and other basic civil liberties, we need to be careful about allowing state sponsored law enforcement to do as they please.

I know that these laws may fail 'justice' from time to time, as it probably did in this case, but the alternative is moving a step closer to totalitarianism. We are all proud of our rights and freedoms in a democratic country, don't be so quick to give them away.

Hunter Thompson, in his work and writing with the Fourth Amendment Foundation, was able to state these things much more eloquently than me. For a good look at the importance of having these laws, see his work on the topic.

[Azure]

Are you saying the cops need a warrent to question you, or even search you for illegal substances?

Even if it is painfully obvious that you're acting in a manner that would suggest you're guilty?

[vanisleflamesfan]

Originally Posted by Azure

Are you saying the cops need a warrent to question you, or even search you for illegal substances?

Even if it is painfully obvious that you're acting in a manner that would suggest you're guilty?

Yes and No. The law hinges on the word "unreasonable". If the police have a 'reasonable' belief that you have committed a crime, then they can (legally) conduct a warrantless search.

In order to obtain a warrant, they must prove that that search would be 'reasonable' based on 'evidence', testimony, hearsay (I think...) or 'reasonable suspicion'. Both of these examples, reasonable warrant and unwarranted searches, are absolutely legal and help the police to do their job.

However, only observing what is considered to be 'suspicious' behaviour would not constitue grounds for a 'reasonable' search. That is why the police here questioned and did not search (they knew the legality of their right to search). This case in not based on the right of the cops to search, in this case, that is pretty clear, they had none, that is why they did not search. It has to do with evidence that they obtained while allegedly violating the suspects right to not be unlawfully detained.

[vanisleflamesfan]

So Jolinar... tell us already - what happened?!?!

[jolinar of malkshor]

At trial in the Ontario Court of Justice, Grant's motion to exclude the gun from evidence because his rights under the Charter had been violated was dismissed. The trial Judge found that there was no detention. He ruled that the conversation between the uniformed officer and Grant was merely "chit chat", while the officer asking Grant to keep his hands in from of him was a "request", not a "direction or demand". Finally, Grant could have simply walked around the officers and kept going.

He was convicted on all counts and sentenced to 18 months imprisionment but appealed to the Ontario Court of Appeal, arguing, in part, that he was detained and that the police questioning amounted to a search. Furthermore, if his rights were violated, he submitted, the revolver should have been excluded from evidence.

Section 9 of the Charter guarentees the right to not be arbitrarily detained. If police have reasonable grounds to detain for an investigation purpose, the detention will not be arbitrary. However, in this case the Crown conceded police did not have reasonable grounds to detain, taking the position that there was no detention.

Do you think the Appeal court upheld the Trial courts decision?