SEARCH AND SEIZURE-PLAIN VIEW DOCTRINE: A Canadian Perspective

posted by Judge_Burke @ 21:33 PM
July 16, 2019

From Judge Wayne Gorman:

 

In R. v. Gill, 2019 BCCA 260, July 16, 2017, the police arrested the accused during the execution of an impression warrant. A struggle ensued, during which an envelope fell on to the ground. A police officer picked it up and discovered it contained cocaine. The envelope was seized. The accused was charged with and convicted of the offence of possession of cocaine for the purpose of trafficking.

 

The accused appealed from conviction.  He argued that the seizure of the envelope was unreasonable and that the trial judge erred in holding that the seizure was authorized by the plain view doctrine.

 

The appeal was dismissed.

 

The Plain View Doctrine:

The British Columbia Court of Appeal noted that “the plain view doctrine, a creature of the common law, has its origins in American jurisprudence and reflects ‘an application of the Fourth Amendment’s central requirement of reasonableness to the law governing seizures of property’: Texas v. Brown, 460 U.S. 730 at 739 (1983). The doctrine provides that where, during the course of executing a legal warrant, an officer locates anything he or she reasonably believes is evidence of the commission of a crime, the officer has the power to seize it…The key to the application of the plain view doctrine is the principle that s. 8 of the Charter protects reasonable expectations of privacy against state intrusions. The premise is that a person can have no reasonable expectation of privacy in an item in plain view to officers where the officers have a right to be present and are carrying out their lawful duties” (at paragraphs 24 and 32).

The Court of Appeal indicated that it “is clear that the officer must be lawfully in the place and acting lawfully in the exercise of police powers when the officer discovers the evidence, in order for the plain view doctrine to apply…It is also uncontentious that the evidence has to be in plain view” (at paragraphs 38 and 39).

The Court of Appeal also indicated that “for the plain view doctrine to apply, the discovery of the item by the officer must be ‘inadvertent’ in the sense that it is not discovered by unauthorized search, but rather, because it is in the open when the police are lawfully in the place where it is visible, and lawfully exercising police duties” at paragraph 52).

Finally, the Court of Appeal held that “in order to justify seizure of an item without a warrant under the plain view doctrine, it must be immediately apparent to the officer that there are reasonable and probable grounds to believe the item is evidence of criminal conduct. The immediacy requirement means that it is apparent without further investigations. The reasonable and probable grounds requirement means that more than mere suspicion is required, but certainty is not required” (at paragraph 59).

 

Application to this Case:

 

The British Columbia Court of Appeal concluded as follows (at paragraphs 109 to 110):

I see no error in the judge’s application of the plain view doctrine, which was based on her findings of fact which were supported by the evidence.

I therefore see no error in the judge’s admission at trial of the evidence of the seized cocaine brick.


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