In R v Ali, 2020 ABCA 344, the Alberta Court of Appeal reiterated the longstanding principles that police officers are entitled to rely on information gathered by fellow officers during the course of an investigation. More specifically, a police officer’s subjective belief can be based on information obtained from fellow officers.
In Ali, the appellant was arrested for trafficking cocaine in Lethbridge, Alberta. Prior to his arrest, the Lethbridge police had received information that two people were bringing large quantities of cocaine from Calgary to Lethbridge in a brown van and were selling drugs from a specific residence. The police had physical descriptions and nicknames for the two people allegedly selling drugs and, after speaking to the building manager of the residence, they learned that tenants had complained about drug trafficking at the residence. The police conducted surveillance at the building and observed activity consistent with information they had received from the informants.
The police obtained and executed a search warrant for the residence. Three people, including the appellant, were found at the residence. When the appellant was arrested and searched, the police found him to be in possession of a large amount of cash, a cell phone and a small bag of marijuana. The appellant was taken to the police station where three white baggies containing cocaine were found in his “butt crack area” during a strip search.
At trial, a voir dire was held to determine the admissibility of the crown’s evidence. The appellant argued the search warrant was improperly issued, the strip search was not justified, and that he had been denied reasonable access to counsel. The trial judge rejected the appellant’s arguments and admitted the evidence. The appellant appealed his conviction only on the ground that the strip search was not justified in the circumstances.
The Alberta Court of Appeal considered two discrete issues on appeal:
- whether some of the information relied on by the police was not properly introduced on the voir dire, and thus was inadmissible hearsay; and
- whether the trial judge applied the correct test for the justification of a strip search.
THE HEARSAY ISSUE
In considering the hearsay rule, the Court held that hearsay is a rule of evidence. The rule is only of significance to decision-makers who are bound by the rules of evidence; in other words, courts and tribunals. Police officers conducting an arrest or search, or who are otherwise involved in an investigation, are not conducting a “hearing” or a “trial” and are not bound by the rules of evidence. Police officers are therefore entitled to rely on any information they receive, as long as it is credible and reliable.
Importantly, the Court affirmed that police work is a team undertaking. In particular, the execution of the search warrant, the resulting arrest and the decision to conduct the strip search were the results of information gathered collectively by officers working as a team. Although the searching officer did not directly observe the conduct leading to the strip search, a fellow investigating officer observed the appellant reach towards his nether region during his arrest and had relayed that information to the team. Based on that information, the Staff Sergeant on duty decided a strip search was necessary.
As the result, the Court rejected the appellant’s argument that the search was not justified because it was based on hearsay evidence and affirmed that police officers are entitled to rely on information from other officers when making decisions in the course of their duty.
REASONABLE AND PROBABLY GROUNDS
With respect to whether the police had reasonable and probable grounds to conduct a strip search of the appellant, the Court reiterated police officers must always have a subjectively held belief that reasonable grounds to search exist. In addition, there must always be an objective basis for the officer’s subjective beliefs. Additionally, the Court confirmed the focus of the inquiry is on the information known to the police at the time the decision was made to conduct the search.
In brief, the question to be answered is this: Was the information sufficiently credible to justify reliance on it, and assuming it was reliable; was it sufficient to objectively support the police’s conclusion that they had reasonable and probable grounds for the search?
With that being said, the Court held the trial judge was not required to find, as a matter of fact, the appellant had “reached towards his nether region”. Rather, the judge was only required to decide if, at the time the decision was made to conduct the strip search, the police, working as a team, had “reasonable and probable grounds” to conduct the strip search. In that regard, the Court held police do not have to demonstrate reasonable and probable grounds on a balance of probabilities. Instead, reasonable and probable grounds exist where, for reasons above mere suspicion, it is not unlikely that evidence would be found during the search. Working as a team, the police in this case were entitled to conclude from the whole context there were reasonable and probable grounds for the strip search.
In our view, it bears repeating that the factual context of the strip search was a key determining factor in this case. In particular, the Court noted surveillance and confidential informants had indicated drug trafficking activity was occurring at the residence where the appellant was arrested. During the arrest, the appellant was observed reaching towards his “nether region” at the back of his pants, which were below his waist. This invited an inference that he was trying to hide something. The Court held that no specific evidence was needed to establish that drug dealers sometimes conceal drugs in their body cavities because police experience is undoubtedly consistent with hundreds of reported decisions regarding such behaviour. Moreover, the observed behaviour was consistent with an inference that drugs kept in the appellant’s pocket had been relocated because of the police search. While that may not have been the only available inference, it was certainly an objectively reasonable inference on which the police were entitled to rely.
Ultimately, the Court dismissed the appeal and upheld the conviction.
When articulating a subjectively held belief, police officers must be able to identify the various factors that led to the decision in question. This case confirms that police work is inherently team-oriented and, as such, officers routinely and necessarily rely on information they learn from other officers. The fact that some piece of information may not be admissible in court because of the rules of evidence (e.g. hearsay) does not render the information unavailable to police for the purpose of the subjective/objective test required to establish reasonable and probable grounds.
For more information, please contact David McKnight or Naomi Krueger.