Search warrant defective, but trial goes ahead

In a case involving a charge of possessing cocaine with intent to supply, Magistrate Philippa McFarlane Ebanks ruled last week that the search warrant used to enter the defendant’s house was unlawfully executed.  

However, she rejected the argument that police officers conducting the search were trespassers and concluded that it was possible for the defendant to have a fair trial. 

Attorney Hugh Small, instructed by Peter Polack, had argued that the magistrate should stay proceedings on the basis of abuse of process. 

It was not disputed that officers went to the defendant’s residence early in the morning of Nov. 25, 2013, and seized items they suspected to be controlled drugs. These items included vegetable matter, which the defendant immediately identified as ganja, along with a plastic bag of a substance resembling cocaine, three electric scales, sandwich bags, glucose, a razor blade with white powder, a pair of scissors, a kitchen towel and two blue mobile telephones. 

The search warrant was obtained three days earlier from a Justice of the Peace. Critically, the magistrate noted, it was obtained under the Criminal Procedure Code. She said she was somewhat puzzled as to why police did not choose to conduct the search or obtain the warrant under the Misuse of Drugs Law. 

A warrant issued under the Misuse of Drugs Law may be executed at any time of the day or night, the magistrate emphasized. A warrant issued under the Criminal Procedure Code “may be executed on any day between the hours of sunrise and sunset ….”  

The summary of facts prepared by police indicated that the search began at 6:25 a.m. A search booklet prepared by one of the officers indicated that the search began at 5:47 a.m. 

[Cayman’s National Weather Service confirmed that sunrise on Nov. 25 was at 6:39 a.m.] 

The magistrate said she was guided by a local precedent which states that in the absence of evidence that the officers were exercising their powers under the Misuse of Drugs Law, “the warrant obtained pursuant to the Criminal Procedure Code in relation to drugs but executed prior to sunrise is defective and its execution unlawful.”  

The next question was what effect the unlawful search would have on the evidence. 

Mr. Small argued that any evidence obtained during an unlawful search would be inadmissible, so the charges against the defendant should be dismissed. 

Crown counsel Greg Walcolm argued that even if officers are deemed to be trespassers because of the unlawful execution of a search warrant, when they are “acting with earnest and genuine desire to interdict serious crime” the evidence is not automatically rendered inadmissible. 

Such evidence can be admitted, provided that: the police have reasonable grounds for believing a serious offense has been committed; police have reasonable grounds for believing the articles in question are either the fruit of the crime or material evidence to prove the commission of the crime; the police have reasonable grounds to believe the person in possession of the articles has either committed the crime or is in some way implicated; the police do not keep the articles longer than is reasonably necessary to complete their investigation or preserve for evidence; the lawfulness of the police conduct must be judged at the time, and not by what happens afterward. 

Mr. Walcolm also pointed out that the common law recognizes “a public interest in the detection of crime which may outweigh the interest in protecting people’s property from unauthorized interference.” 

In this case, the magistrate noted, the police had received confidential information and had reasonable grounds for believing an offense was committed, and the drugs would clearly be material to prove the commission of the crime. 

The police clearly also had reasonable grounds to believe that the defendant had committed the offense, and preserved the evidence. The magistrate said she was persuaded that there was no bad faith on the part of police and the defendant was in no way misled about the purpose of the search. 

Defense attorneys also argued that the defendant was not present throughout the entire search of the premises and there were several requests for disclosure of information the defense was entitled to but had not received.  

The magistrate did not accept that the defendant’s absence from the premises for a part or whole of the search amounted to an abuse of process. This submission was not entirely accepted by the Crown, she noted, and she was not satisfied that it would result in prejudice to the defendant of the kind that would make a fair trial impossible. 

“The trial process is best equipped to deal with submissions regarding any breach of the RCIPS or other codes of practice,” the magistrate said. Finally, the defendant could apply during his trial for evidence to be excluded on the basis that its prejudicial effect outweighed its probative value.