Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
J. Spare, for the Crown
— And —
George Athanasiou
R. McDonald, for the accused
Heard: January 19, 20, 21, 29, 2016
FELDMAN J.:
Introduction
1George Athanasiou entered not guilty pleas to charges of Possession for the Purpose of Trafficking in marijuana, hashish, cocaine, heroin, ecstasy and oxycodone, contrary to s. 5 of the Controlled Drugs and Substances Act, as well as Possession of Property Obtained by Crime, contrary to s. 354(1) of the Criminal Code.
2Mr. Athanasiou was arrested as a result of a follow-up investigation arising from the execution of search warrants on May 28, 2014, part of which involved 5 residential addresses, 1 business address and 4 motor vehicles. These particular raids targeted members and associates of Asian Assassinz, a street gang active in drug and firearms trafficking and responsible for a number of murders and attempted murders in this city.
3One of the targets arrested at his residence was Anthony Tseng, who lived at 8 Charlotte St., apartment 2605. All of the arrests fell under the umbrella of Project Battery, a joint police operation under the direction of the Guns and Gangs Task Force investigating the criminal activity and violence perpetrated by 5 rival street gangs. Mr. Athanasiou was not a target of this larger investigation.
4In the course of Mr. Tseng's arrest for Participation in a Criminal Organization and Possession of a Controlled Substance for the Purpose of Trafficking, police found a prohibited loaded .38 calibre semi-automatic handgun, a bullet-proof vest and significant funds, although no drugs. In this regard, the police were mindful that a number of targets were known to have maintained stash locations nearby for their drugs.
5Police also located a key for Mr. Tseng's Lexus automobile, leased to his sister, Amy, and a fob for his apartment, as well as one for an unknown residence. In the course of this search the discovery of a parking tag led police to 85 East Liberty St., part of a large condominium complex where the second fob permitted entry into the building and ultimately to apartment 1421, where it appears Mr. Athanasiou had spent the previous night.
6This unit was also leased to Anthony Tseng's sister. As with other targets of the investigation, police believed in the circumstances that this address was set up as a stash location for drugs and money.
7On May 28, police arrested Mr. Athanasiou at this apartment on discovery there of a significant quantity and variety of drugs, in addition to monies viewed as proceeds of crime.
The Charter Application
8Mr. McDonald, for the Applicant, submits that his client has standing to assert a reasonable expectation of privacy in the East Liberty St. apartment and that, as well, the initial search was warrantless, based on insufficient grounds and unreasonably conducted, not least by the officers remaining inside the unit until the search warrant sought was granted hours later.
9It follows, he says, that the search warrant was tainted by information unlawfully obtained, rendering it invalid and the subsequent search in violation of his client's s. 8 rights. As well, counsel submits that given this violation, the Applicant's s. 9 right not to be arbitrarily detained or arrested was breached. He asks that the evidence of drugs and money be excluded under s. 24(2).
10Mr. Spare, for the prosecution, submits that on the evidence the Applicant had at best a reduced privacy interest in the apartment, that the initial police entry was justified by exigent circumstances and that there was sufficient evidence to support the granting of the search warrant and its execution. He asks that the s. 24(2) application be dismissed.
The Evidence
11Det. Don Theriault has been with the Asian Organized Crime Task Force (AOCTF) for 5 years. He testified that during the course of the May 28th takedown, raids at 26 addresses led to 42 arrests and seizure of 8 firearms, in addition to a very large quantity of illegal drugs, cash and GPS devices used by rival gang members to track the movements of their rivals.
12Following the raid at 8 Charlotte St., D.C. Brendan Stevenson found that one of the fobs provided entry to 85 East Liberty St., learning from the concierge that it was linked to apt. 1421. He said the latter address was proximate to Mr. Tseng's condominium that was associated with Asian Assassinz.
13Det. Stevenson, together with Sgt. Chad Reid and Det. Robert Wallace, were instructed at 8 a.m. to remain by the unit pending the receipt of a warrant to search this suspected stash house and to detain anyone leaving the apartment in order that potential evidence be preserved. D.C. Eduardo Miranda was already on the 14th floor.
14It is evident these experienced officers understood that where drugs are possessed and guns used by gang members to the degree apparent in the raids that day and they confront suspects, they need proceed with caution mindful of the risk to their own lives and safety.
15Mr. Athanasiou came out of the apartment at 10:13 a.m. He told the court he saw 3 suspicious looking people and then turned to lock the door. He was intending to book the elevator as he was taking his few belongings and moving into his own apartment that day. He claims all 3 officers pointed their guns at him. He said D.C. Stevenson tapped his face with his gun.
16The defendant testified that he was told to get down and then pulled to the ground and handcuffed. When he asked what he had done, he said he was told to shut the fuck up. He told the court he then saw Sgt. Reid on his phone briefly, after which he was taken into the apartment with the officers about a minute later.
17D.C. Stevenson explained that his gun is usually drawn in cases of high-risk takedown, such as in this case, where the results of raids earlier that day highlighted inherent risk from dangerous individuals. He assumed this address was a stash house.
18D.C. Stevenson told the court that after drawing his firearm, he identified himself and told the accused to get face down on the ground. He recalls Det. Wallace and Sgt. Reid placing handcuffs on his detainee. He says he conducted a pat down search of the defendant and found a set of keys. He denies putting the barrel of his gun in the suspect's face.
19His evidence is at odds with that of his colleagues. Det. Wallace testified that he was the one who first confronted the accused, ordered him to the ground, handcuffed him and did a pat down search. He denies the defendant was placed face down. He said he told Mr. Athanasiou that he was detained pending receipt of a search warrant.
20Det. Wallace told the court that the defendant yelled, "What did I do" and then looked at the door, leaving the officer concerned he was attempting to warn others in the apartment. He said Mr. Athanasiou told him he had some weed inside and that he didn't live there, but rather had slept there overnight intending to move into his own place that very day.
21The officer arrested him for Possession for the Purpose of Trafficking in marihuana. He says the accused indicated that he did not know if there were others in the apartment, in the circumstances, an utterance that makes no sense as having been made.
22Det. Wallace said he did not draw his gun, nor did he see others with their firearms out. Unlike D.C. Stevenson, he saw no reason to do so. It is difficult to accept that working in such close quarters this officer would be unaware of his colleague's use of a gun in the collective action to detain the defendant.
23He agrees that were a gun drawn, as in this case, a Use of Force Report required to be filed. He is not aware that one was filled out in relation to this arrest.
24Sgt. Reid testified that he and Det. Wallace were the first to approach the defendant and take him to the ground. He recalls that someone else handcuffed him. He felt that because Mr. Athanasiou did not lock the door other persons could be in the apartment, raising questions of officer safety, as well as concern for the destruction of evidence. He phoned his 'road boss', Sgt. Teixiera, to report on what had occurred. He received instructions to enter the apartment.
The Initial Entry
25The officers testified that they went in at 10:18 a.m. to clear the unit of other occupants, to ensure officer safety and to prevent the destruction of evidence. In this regard, D.C. Stevenson told the court that as they were in plain clothes they waited until a tactical team wearing protective police vests arrived. He followed that team in together with the defendant who was in the direct custody of Det. Wallace. Given the raids that day, the seizure of firearms and safety concerns, it is objectively reasonable that the officers waited a matter of minutes for a tactical team to lead the entry.
26The officers observed in plain view a bundle of Canadian currency, loose American currency, a bag of marihuana and several cardboard boxes. Sgt. Teixiera instructed Det. Wallace to arrest the accused for Proceeds of Crime.
27Det. Wallace and D.C. Stevenson then left to check out the keys and fob found in the defendant's pockets, returning at 2:38 p.m. on learning that a search warrant had been granted.
28In relation to the initial entry, Mr. Athanasiou testified that after Sgt. Reid got off the phone in the hallway, the officers took out their guns, lined up on the wall and entered the apartment. He says D.C. Stevenson brought him in and sat him down. He believes it was Det. Wallace who kicked open the locked bathroom door. In the evidence, no officer took responsibility for that act.
29The defendant says the officers conducted a cursory search of the apartment. He recalls the tactical team arriving within 2-3 minutes of the commencement of the initial search. He told the court they came in without their guns drawn. This makes sense only if they were aware that the premises had been cleared.
30Mr. Athanasiou says Sgt. Reid yelled out that he had found a large bag of cocaine. The defendant admitted to possession of some, but not all of the contraband found on the night table beside his bed. He told Det. Wallace that Alex, a 5'7" Filipino with a snake tattoo on his arm, lived there and that he had seen him the day before. He did not provide a last name.
31Det. Wallace told the court that uniformed officers arrived at 10:35 a.m. and took charge of the accused. He recalls the defendant admitting ownership of the boxes in the second bedroom that he claims to have stored there and that he intended taking with him on his move.
32Sgt. Teixiera testified that he arrived on the 14th floor at 10:18 a.m. and that he was the first one of the tactical team to enter the apartment. Although concerned about entering without a warrant, he was of the view there were exigent circumstances justifying that decision. In this regard, he had been advised that the defendant had caused a scene indicating the possibility others were inside and raising issues of officer safety, as well as jeopardy to potential evidence.
33Once inside, the officer said he observed in plain view in the living room rolling paper and marihuana. On a night table in the defendant's bedroom he saw a lot of cash, a medicine bottle and two bags of marihuana.
34Sgt. Teixiera kept his colleagues inside pending receipt of the warrant in light of his experience that drug dealers often had multiple stash houses in large apartment buildings. He was worried that if officers waited in the hallway they might become targets or gang members might scale the balcony in order to destroy evidence or attack the police. The latter concern seems a remote and questionable rationale.
The Search
35The police were informed at 2:38 p.m. that a warrant had been granted and began searching the apartment. They found the following: Mr. Athanasiou's identification, $2,090 in cash, two cellular phones, 678 grams of heroin, 72 grams of marihuana, 20 grams of clonazepam, 551 grams of cannabis resin, 6 grams of ecstasy and 4 grams of oxycodone.
36Sgt. Reid videotaped the search. He captured the following items. On the night table in the master bedroom there was $2090 Canadian, $50 U.S., a ziploc bag with marihuana wrapped in white plastic and chlorazepam pills. Inside the night table he observed a jar of marihuana, 3 jars of hashish oil, 6 viles of hash oil and yellow ecstasy pills. Police also discovered a 'Wind' bag inside the bedroom closet. In the bag there were quantities of heroin, hash, oxycontin and some American dollar bills. Of significance, the officer cannot recall if the closet door was open or shut when he entered the room.
37The weights of the respective drugs included 66 gms of heroin, 79 gms of marihuana, 545 gms of hash oil (including the content of the glass jars), 2.1 gms of hashish, 20 ecstasy tablets, 7 oxycodone tablets and 118 clonazepam tablets, all in close proximity to $2000 cash.
38Det. John Margetson is an expert in the sale and distribution of illicit drugs. He testified that seen in totality the quantity of drugs seized was more consistent with commercial or addict trafficking than personal possession. He conceded, however, that but for the heroin, he could not rule out possession of the remaining drugs, viewed individually, as being consistent with personal use.
39Det. Margetson discussed the use of stash houses. He said commercial dealers use them to store their drugs, but never to conduct transactions with buyers. Rather, the large dealers have foot soldiers for that purpose to avoid contact with law enforcement officials. He noted that some mid-level dealers share stash houses and distribute from there to street dealers.
40Det. Zach Irvine is an expert in computer and cell phone forensics. He works at the Technological Crimes Unit of the Toronto Police Service. He examined the defendant's cell phone sim card.
41Det. Irvine reviewed the phone's web history. He found 6 searches on heroin overdose, a photograph of the living room in apartment 1421, two photographs of the defendant standing on the balcony and other photos of some baggies containing a white substance, a chunky substance and some pills. He conceded these images could have been received by email, text or SMS and is unable to say if all of them were taken by the accused on his phone.
Possession for the Purpose of Trafficking – The Defendant's Testimony
42Mr. Athanasiou is 23 years of age. He lives with his mother. He told the court how it was he happened to be in apartment 1421 on May 28. He said he had slept there the night before following an evening of drinking with friends. He did not want to return home in an intoxicated state to his girlfriend, Jona Faller, with whom he had recently begun a relationship and in whose residence he had been living since early May. He explained further that his mother had forced him out on May 1 or 2 because he had broken her rule that he not have drugs in her home.
43Mr. Athanasiou says he has access to this unit because of his friendship with Jeffery Padullo-Mendes, who he believed to be the owner and from whom he purchased marihuana both for personal use and sale. He said he slept there 3 nights in May. He claims his friend permitted him to leave his belongings in that unit in May.
44The defendant testified that he was intending to move into his own apartment on May 28. In fact, he says he was celebrating his pending move the night before. He produced a lease that supports his testimony in this regard.
45As well, the evidence of the accused's mother, Maria Athanasiou, and of his girlfriend, also tends to support his testimony about his living arrangements in May. Ms. Athanasiou confirmed she had kicked her son out of her home for breach of her rule concerning drugs when she found marihuana in his laundry bag. She is aware he takes medication for anxiety. She does not view her son's behaviour to be consistent with use of hard drugs. She has met Mr. Padullo-Mendes a few times at her home. Ms. Athanasiou, a bank manager, seems to be a responsible individual. She was not seriously challenged in cross-examination.
46Ms. Fuller confirmed that her relationship with the defendant was recent and that he lived with her during the month of May, but for 3 nights, including the night before his arrest. She was aware he had anxiety issues and did not know him to be around hard drugs. She knew he was moving into his own apartment at the end of the month. I found her to be a straightforward witness.
47Mr. Athanasiou testified that he arrived at the condominium in the early morning hours of May 28 in an intoxicated state and went to sleep. He said he had marihuana with him as well as clonazepam pills with which he self-medicated.
48The defendant told the court that the marihuana was in both shake and bud form, the latter more potent and therefore desirable to purchasers. He said the shake was for his own use while he sold the buds in order to earn some income. He claims to have had his life savings of $3000 with him, $1000 of which came from the sale of marihuana.
49Mr. Athanasiou admitted ownership of the marihuana and pills on top of the night table, but said he was unaware of the drugs inside that table. He denies knowing what was in the closet. He claims to have gone right to sleep given the hour and the effects of alcohol. He believes the police were responsible for leaving his credit cards and identification documents on top of the table after searching through his wallet, a logical inference in the circumstances.
50Mr. Athanasiou claims not to have known that Jeffery dealt in cocaine, a questionable assertion about someone he claimed to be a friend. In fact, Mr. Padullo-Mendes, now deceased, was subsequently charged with a number of serious trafficking charges involving hard drugs.
51It also does not assist the defendant's testimonial reliability that he spoke to police about meeting Alex 4-5 times, but did not mention Jeffery. As he explained, he sought to protect his friend from investigation, indicating a willingness to control the flow of information to the authorities. It permits an inference of a tendency to be self-serving, as is likely the case of his denial that he told Det. Wallace he saw Alex at the apartment the day before. It leaves the court cautious in weighing his evidence.
52Regarding the heroin searches, Mr. Athanasiou said he thinks it to be the worst of all drugs. He says he searched overdoses on Google because of his concern about a co-worker who struggled with heroin. He denies interest in using cocaine.
Search Issues
Expectation of Privacy
53The Crown conceded that the defendant had at least a reduced privacy interest in the unit. I agree.
54In R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, Cory J., at para. 45, set out certain factors supporting one's s. 8 right to be secure against unreasonable search and seizure. These include, in part: presence at the time of the search; historical use of the property; ability to regulate access; a reasonable expectation of privacy; objective reasonableness of the expectation. See also R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, where the court found a reasonable expectation of privacy in a person who occupies a hotel room; and R. v. Buhay, 2003 SCC 30 (CanLII), [2003] 1 S.C.R. 631, where a lower expectation of privacy attached to an individual who stored his belongings in a locker.
55Mr. Athanasiou stored some of his belongings in the apartment during the month of May. Someone he believed had an interest in the unit gave him access. He had a key. He slept there a few nights, indicating a limited degree of historical use. It is, as well, objectively reasonable to infer that on the nights he stayed there he felt he could exclude strangers.
56On this evidence, I am of the view the defendant has standing to argue that his privacy interest was infringed.
The Initial Entry
57Mr. McDonald submits that the initial entry was unlawful. In approaching this issue, I am mindful of the context, large-scale residential searches and arrests of violent gang members trafficking in drugs and firearms that day where the safety of officers was at risk.
58The detention of the accused took place in the course of a follow-up investigation outside a suspected stash house. I accept that in these circumstances entry occurred in exigent circumstances directed at clearing the unit and preserving evidence. I accept, as well, that both marihuana and possible proceeds of crime were seen in plain view, enhancing the basis for the granting of a search warrant.
59On the issue of the reasonableness of the search and reasons for remaining in the unit pending the issuance of a warrant, I am challenged in making my findings of fact by questionable evidence on the part of both parties.
60Mr. Athanasiou did not strike me as someone inclined to be straightforward and honest. He lived on the margins of the community as a petty drug dealer. As apparent earlier in this judgment, he manipulated his mother as he did the police by omission in failing to mention his friend, Jeffery Padullo-Mendes, in order to protect him from investigation. On the defendant's recollection of the search, I incline to the view of Crown counsel that its reliability was affected by the impact of his waking up from a state of intoxication, from self-medicating and the shock of the detention.
61The police evidence also suffered from reliability shortcomings. D.C. Stevenson testified that he was the first to have contact with the accused and had his firearm drawn in what he considered a high-risk takedown. By contrast, Det. Wallace saw no reason to draw his gun and despite working in tandem with his colleague did not see his gun, in addition to indicating that it was rather he and Sgt. Reid who were first to confront the defendant. These officers worked as a team in close quarters to neutralize their detainee. It is difficult to accept they would be unaware a firearm was in use by one of their colleagues. As well, it makes little sense, as suggested by Det. Wallace that the accused would tell him he did not know if there were others in the apartment.
62However, on the evidence, I accept that the police delayed their entry for a few minutes to permit colleagues in tactical gear to arrive and lead the way in. Safety was surely a focus given the earlier seizure of firearms from dangerous gang members and the uncertainty of entry into a likely stash house. I agree with the Crown that I should weigh the accused's recollection in this regard as likely diminished by the lingering effects of alcohol and pills.
63Finally, I defer to police experience and accept their reasons for remaining in the apartment while waiting for the search warrant to be granted. It was reasonable for them to be mindful of the possibility of other related stash houses in the building that would render them less safe while waiting in the hallway. I give a degree of weight to the possibility of entry by someone into the unit, however remote, from an outside balcony to destroy evidence.
64On all the evidence, I do not find a violation of the defendant's ss. 8 and 9 rights. In the event that the fact the police remained in the unit is viewed as a s. 8 breach, the Applicant would not in my view succeed on a Grant analysis (R. v. Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353). I am of the view that the police acted in good faith in circumstances of risk so that the seriousness of a breach would be reduced significantly and would favour inclusion of the evidence, as would the third factor given the reliability of the contraband evidence. While the impact of any infringement on the Charter-protected rights of the defendant favours exclusion, a balancing of these factors would, in my view, lead to the admission of the evidence.
Validity of the Search Warrant
65There was a reasonable inference on the information available to the police on May 28 that Anthony Tseng, alleged to be a drug and firearms trafficker and member of a criminal organization, controlled apartment 1421 and used it as a stash house.
66I agree with the endorsement of F. O'Donnell J. in granting the search warrant that "even without the details of the items seen inside the apartment" and having regard to the content of the two ITOs, the necessary grounds were made out to satisfy the standards of s. 487 of the Criminal Code and s. 11 of the CDSA.
67The search warrant and its execution were lawful. The Charter application is dismissed.
Was the Accused in Possession of the Drugs Seized in Apartment 1421?
68I accept the testimony of the defendant, materially supported by other credible evidence, that he fell asleep in an intoxicated state in the early morning hours of May 28. He admits possession of the drugs, pills and monies from the sale of marihuana found on top of the night table, but claims ignorance of the contraband inside that table, as well as the heroin and other contraband in the 'Wind' bag inside the bedroom closet.
69On the evidence, given the sparse furniture and link to Anthony Tseng, there is also a reasonable inference this apartment was a stash house used by more than one drug dealer. In this regard, there is evidence that Jeffery Padullo-Mendes also had access to it.
70Mr. Athanasiou has admitted visiting Jeffery at the unit to purchase marihuana and sleeping there on occasion. It is probable he was aware of other drugs in the apartment.
71On May 28, as even the Crown suggests, the defendant arrived after a night of drinking, intoxicated, on his own evidence by alcohol, marihuana and anxiety medication, and went right to sleep. On this evidence, I am in reasonable doubt that on this night he was aware of what was inside the night table. I also have a reasonable doubt that he was cognizant of the 'Wind' bag or its contents. On this fact in issue, it is relevant that Sgt. Reid is unable to say whether the closet door was open or closed when the search began.
72In the circumstances, on the basis of his admissions in the context of all the evidence, the accused will be found guilty of possession of the marihuana found on top of the night table, as well as the related proceeds of crime. Expert evidence indicates the amount of cannabis is consistent with personal use. His future intention regarding the buds, whether for personal use or sale, is not determinative.
73The remaining counts are dismissed.
Released: April 14, 2016
Signed: "Justice L. Feldman"