ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CRIMJ(F) 1971/12
Date: 20130705
B E T W E E N:
MOHAMED REZA KHAN
J. Bogle, for the Defence
Applicant
- and -
HER MAJESTY THE QUEEN
M. Park, for the Crown
Respondent
Heard: June 4, 5, 2013
RULING ON SECTION 8 APPLICATION OF THE DEFENDANT
Mossip J.
[1] An application was brought by Reza Khan to exclude the evidence obtained from his cellular phone when it was seized by the police on September 1, 2011. Reza Khan had turned himself in at the RCMP office after a telephone conversation with Constable Buchner.
[2] Reza Khan drove to the RCMP office with his girlfriend, his uncle and his cousin. Prior to surrendering himself to the RCMP, Reza Khan gave his two cell phones and his wallet to his uncle to hold for him when he went in to see the RCMP. Constable Buchner arrested Reza Khan after he presented himself to the RCMP. Constable Buchner asked him about his cell phone; Mr. Khan said he did not have his cell phone on him. The officer knew that he had a cell phone because he spoke to Mr. Khan on that cell phone on his way to the detachment, when he called him to get driving directions.
[3] Constable Buchner then went out to the parking lot to ask the family where Reza Khan’s phone was; they said they did not know, but it might be at home or in the car. The girlfriend and Mr. Reza Khan's cousin started looking in the car for the phone. Cst. Buchner called Reza Khan’s number on his own cell phone to assist in locating it. He heard a faint phone ring in the distance which came in the direction of the uncle who had walked away from the car, and who was talking on his own cell phone.
[4] Constable Buchner went over to the uncle and asked him if he had Reza's cell phone and if he had heard the ringing. The uncle ignored the officer. Constable Buchner dialled the number again and heard it right beside him. He reached into the uncle's pocket and pulled out Reza Khan’s Blackberry. This seizure of the phone happened less than five minutes after Reza Khan was arrested
[5] Constable Buchner, at approximately 8:16 p.m., started looking at Reza’s phone. He was looking for evidence related to the offence such as any tracking numbers for the package or telephone calls or texts with any co-conspirators. He went into messages and recorded in his notebook the text messages between Reza Khan and Javed as well as any other texts with respect to the package.
[6] The cell phone was not password-protected, nor locked in any other way. The officer was able to immediately go to the messages and look at the texts related to the investigation.
[7] Cst. Buchner testified on the voir dire that he looked at the phone because he was searching for evidence related to the offence. It is his experience in controlled delivery investigations that the phone might connect the investigation to co-conspirators or provide evidence as to knowledge of the package containing drugs, such as a tracking number. The original consignee is not usually the final recipient of the drugs so the police in an investigation are looking for the final recipient, and this can often be determined from the cell phone of one of the conspirators.
[8] Constable Buchner testified that he believed his authority to seize and search the phone was because it was done incidental to the arrest of Reza Khan. He knew Reza Khan had a phone because he had spoken to him prior to coming into the station as he was on his way in. He believed there was some urgency as he had some knowledge, although he could not confirm it, that messages could be remotely erased from smart phones. Further, if there were co-conspirators they wanted to quickly ascertain who they were before they disappeared after the arrest of the Reza Khan.
[9] He recorded the BBM message conversation that he accessed through the message section of the phone. He did not go back and re-search the phone after he found these messages.
Applicable Law
[10] As this is a search and seizure without a warrant, the onus is on the Crown with respect to the section 8 application of the defence to exclude the evidence obtained from the phone on the basis that the seizure and search was not reasonable.
[11] A seizure and search will be found to be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable. (See R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 at para. 23.)
[12] In this case the Crown argues that the seizure and search of Reza Khan’s cell phone was authorized by law because it was incidental to a lawful arrest. The defence argues that the seizure and search was illegal because it cannot be said to have been carried out incidental to an arrest. The defence does not argue that the arrest was not lawful. The defence argument is the seizure of the phone from the uncle's pocket was illegal. The defence does not take serious issue with the fact that the actual search of the phone was a cursory one, and therefore likely meets the test set out in the recent jurisprudence in this area. (See R. v. Fearon, 2013 ONCA 106, [2013] O.J. No. 704 Ont. C.A.; R. v. Manley, 2011 ONCA 128)
Analysis and Decision
[13] I am satisfied that the seizure and search of the Reza Khan’s cell phone was both reasonable and legal. I am satisfied that the search of this phone after the seizure of the phone was incidental to the lawful arrest of Reza Khan. If I am wrong in that regard I am satisfied that pursuant to the analysis in R. v. Grant, 2009 SCC 32, 2009 CarswellOnt 4104 the evidence should not be excluded pursuant to s. 24(2) of the Charter.
[14] There is no case that I was referred to directly on point with respect to the facts before me. It is not disputed that the cell phone was not in possession of Reza Khan at the time of his arrest. If it had been there would be no basis for the application by defence, as it would have been seized off his person at the time of his lawful arrest, and would have been easily or readily described as search and seizure incidental to his arrest and for the purposes of preserving evidence or investigating the offence Mr. Khan was charged with. The issue for me is, can the seizure of the cell phone from the uncle's pocket in the parking lot of the police station, be considered incidental to the arrest of Reza Khan in the building adjacent to that parking lot. I answer that question in the affirmative for the following reasons.
[15] There is no dispute that Reza Khan was talking to the arresting officer on his blackberry phone as he was coming into the station. Accordingly the police were well aware that Reza Khan had that Blackberry with him as he came to the detachment to turn himself in. Further the police were aware that Reza Khan was likely tipped off about the police being involved in the package by his cousin Saif, who sent him text messages about that involvement to Reza Khan on his blackberry.
[16] There is some authority for the Crown's submission that the search incidental to a lawful arrest encompasses the immediate geographic area where an accused is arrested. Therefore it has been held to be proper for an accused’s car to be searched, if the police have reasonable grounds either for officer safety, or to assist in preserving evidence with respect to investigation of the crime that the accused has been arrested for. This right to search might also encompass a small geographic area when an accused is arrested outside of the car.
[17] These are unique circumstances where the family of Reza Khan were deliberately hiding the phone from the police, as Reza Khan's cousin Ramez testified to on the voir dire, and where the police had reasonable grounds to believe that Reza Khan deliberately did not bring his phone into the police station. The police also had reasonable grounds to believe that the cell phone contained evidence with respect to the offence that the accused was arrested for. For those reasons, I find that the seizure of the phone within minutes of the time of the arrest of Reza Khan, close to where Mr. Khan surrendered himself, was a seizure and search incidental to the arrest of Reza Khan and was therefore authorized by law.
[18] The actual search of the cell phone I find was cursory. The police officer went to the messages without having to have a password or unlock the cell phone. He transcribed the text messages that were related to this investigation. He did not conduct an overall search of the cell phone or any of the data on the phone.
[19] I am satisfied that the search of the officer is within the parameters set out by the Court of Appeal in the recent decisions of Fearon and Manley.
Section 24.2 Charter
[20] If I am wrong with respect to my finding on the section 8 application and there has been a breach, the evidence would be admissible in my view based on a Grant analysis. I make this finding for the following reasons.
• the police officer acted in good faith in that he believed he was conducting a lawful seizure and search of the cell phone incidental to the arrest of Reza Khan. The conduct of the police officer was reasonable. He called the number of Reza Khan’s cell phone and took the phone from the pocket of the uncle who was hiding the phone from the police. There was nothing in the police officer’s behaviour that calls out for the censure of the court, or for the disassociation of the court from that conduct;
• Reza Khan had a diminished expectation of privacy of his phone having handed it over to his uncle to hold for him. He did not leave the phone locked in his glove compartment, or at his house. He simply handed it to his uncle who remained in the parking lot of the RCMP detachment. The uncle himself placed the cell phone in a readily available place in a loose pocket that the police officer was easily able to take the phone from.
• there was knowledge by the police officer that Reza Khan had that phone as he came to turn himself into the police station. Further there was a reasonable belief by that police officer that there was evidence on that phone relevant to the investigation for the offence that Reza Khan had been arrested for.
• the cell phone was real and reliable evidence and was not conscripted evidence from Reza Khan.
• although the exclusion of the evidence would not be fatal to the Crown's case, it does bear importance in the Crown's case.
[21] Based on all of the above considerations I am satisfied that the repute of the administration of justice would be better protected by admitting the evidence found on the cell phone.
Mossip J.
Released: July 5, 2013
COURT FILE NO.: CRIMJ(F) 1971/12
DATE: 20130705
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MOHAMED REZA KHAN
Applicant
- and –
HER MAJESTY THE QUEEN
Respondent
RULING ON SECTION 8 APPLICATION OF THE DEFENDANT
Mossip J.
Released: July 5, 2013