Court hears arguments about police not obtaining search warrant
A woman accused of selling a lottery ticket on 13 September, 2008, was fined $250 on 12, June 2013, bringing her trial to a close after almost five years.
Margaret Arnis McLaughlin was sentenced after pleading guilty to selling lottery tickets to a named person, a member of the public.
That person was in fact an undercover police officer who went to McRuss Grocery in Prospect to make a test purchase. Crown Counsel Marilyn Brandt said the charge related to one sale totalling $10.
She asked the court to enter a not guilty verdict on a second charge – using a place as a common gaming house – because the Crown was offering no further evidence. She explained that the crucial witness for that charge was an officer who is on extended medical leave and there was no way of knowing when he would return.
Funds seized at the premises were in relation to this second count, so the Crown was no longer pursuing an application for confiscation, Ms Brandt indicated.
Defence attorney Clyde Allen later confirmed that the amount involved was around $10,000.
Speaking in mitigation for McLaughlin, he observed that gambling seemed to be prevalent in these Islands. There seemed to be a move to introduce it – rightly or wrongly – and there were also objections to it, Mr. Allen noted.
Charities and other groups were permitted to hold raffles or similar activities, he commented. “Our law has no exception to gambling whatsoever, but we all know in certain circles certain forms of gambling take place,” Mr. Allen said.
An informal check indicated that this case had been in court 39 times since November 2008. Mr. Allen said his client did not intend to draw the matter out for so long. “She felt that under the law the police required a warrant. It was an important point to be addressed,” he emphasised.
Mr. Allen raised the point about a warrant after the first Crown witness had given his evidence in the trial. A hearing over several dates followed, with Magistrate Kirsty-Ann Gunn handing down her ruling on 4 March this year. Her conclusion was that the evidence of the search of the defendant’s premises was admissible, although the search itself was unlawful.
Officer makes buy
The first Crown witness was the police officer who was in civilian clothing when he went to McRuss to make a test purchase. He asked the cashier how he could buy a ticket and he was directed upstairs.
He knocked on a door and when he entered he asked to buy a ticket. The defendant told him he was too late for the 5pm draw, so he left. He then went back and bought a ticket for the next draw, at 7.30pm. He was given a receipt, which he handed over to his senior officer after leaving the premises.
The senior officer was to have been the next witness. He would have given evidence about a search carried out in the room upstairs from the shop after the test purchase. The Crown had intended to exhibit items seized.
At this stage, Mr. Allen asked the court to hear submissions on several matters, most notably whether police were required to obtain a search warrant before entering the premises.
The magistrate pointed out that the Gambling Law provides the framework for getting a search warrant. She said the actions of the plainclothes officer gave police sufficient grounds to obtain a search warrant. “Given that this was a planned operation, the police would have had the opportunity to arrange for a Justice of the Peace to be on notice of an application so as to facilitate the granting of a warrant with very little delay.”
At common law, police have the power to search any premises upon which a person is lawfully arrested, the magistrate pointed out. “The prerequisite to this common law power therefore is that there is first a lawful arrest,” she said. “In the absence of a lawful arrest, the common law power to search does not arise.”
It may have been arguable that the plainclothes officer had the right to arrest McLaughlin, but when he left the premises that power was extinguished, the magistrate said. When other police officers entered later, it was a separate act.
The Gambling Law provides that any officer may enter any public place or licensed premises for the purpose of arresting someone seen gambling or betting or assembling for such a purpose, But on the evidence before the court, the upstairs room was neither a licensed premises nor a public place, since the officer was able to gain access only on inquiry.
On all the evidence, the magistrate concluded that the search carried out by police without a warrant was unlawful.
But that did not mean the Crown could not use the exhibits from the search.
A ruling by the Cayman Islands Court of Appeal in 2011 makes it clear that common law still applies in Cayman regarding the admission of evidence. A trial judge has the discretion to refuse to admit evidence if in his opinion it would or might lead to the trial being unfair. But the trial judge has no discretion to exclude admissible evidence on the ground that it was obtained by improper or unfair means.
“It is a well-established principle that a rule of common law is not extinguished by a statute unless the statute makes this clear by express provisions or by clear implication,” the magistrate said. “There is nothing within the Gambling Law to suggest there was such an intention. The court therefore finds that the common law is preserved and…this court does not have a ground for exercising its discretion to exclude the evidence and exhibits of the search.”
It was after this ruling that the senior officer in the case was to have given his evidence and bring to court the items seized in the search.
Mr. Allen told the court that Mrs. McLaughlin doesn’t run the store any more.