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POWERS OF SEARCH AND SEIZURE - Seizure - Scope of power

Monday, May 01, 2017 @ 7:18 AM  

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Appeal by Tsekouras from convictions for several drug offences. Tsekouras was suspected of heading a drug dealing operation. As the investigation of the operation wound down, grounds to arrest Tsekouras had yet to arise, but surveillance continued. When officers saw Tsekouras move documents from one vehicle to another, they arrested him. The reasons for the arrest were not entirely clear. As a police officer approached, Tsekouras took the battery out of his Blackberry and threw the device when ordered to the ground by the officer. That device, along with another Blackberry, were seized and not returned to Tsekouras, despite the fact that he was unconditionally released at the scene of his arrest by a senior officer. The seized devices were searched, although no notice was ever provided to Tsekouras of the intention of the police to detain his devices and search their contents. The Blackberry thrown to the ground yielded evidence leading to Tsekouras’ arrest on the present charges. The judge at Tsekouras’ trial found that the warrantless searches of the Blackberry devices violated Tsekouras’ right to protection against unreasonable search and seizure, but admitted the evidence nonetheless. The judge also admitted statements, including hearsay statements, from Muzzi and Larizza, who were also charged in connection with the drug operation. Larizza had provided a statement that Muzzi and another man had stashed drugs in his home. He was killed prior to trial. In making a guilty plea, Muzzi admitted information that was strikingly similar to Larizza’s statement. On appeal, Tskeouras submitted that the trial judge erred in admitting the Blackberry evidence, Larizza’s and Muzzi’s hearsay statements, and the statement of fact filed and relied upon in Muzzi’s guilty plea proceedings. He also argued that the convictions entered on four counts of preliminary and substantive crimes relating to cocaine were unreasonable.

HELD: Appeal dismissed. In admitting the Blackberry evidence despite the violation of Tsekouras’ rights, the judge gave due consideration to all of the relevant circumstances, including the uncertain state of the law about the need for a warrant to search cell phones at the time the search was conducted, the fact that Tsekouras was informed when he was released unconditionally that his phone might be searched, but took no steps to retrieve it, the fact that a warrant to search the phone was later obtained, and the fact that the investigating officers made reasonable inquiries about search authority and were provided with erroneous information about the need for a warrant and notice to Tsekouras. In admitting Larizza’s statement, the judge was well-placed to gauge Larizza’s sincerity. The statement was confirmed by other evidence. Muzzi’s statement of fact in his guilty plea was not hearsay, but rather circumstantial evidence of the existence of an agreement to traffic in controlled substances. Tsekouras failed to satisfy the onus on him to demonstrate that the statements of Muzzi and Larizza did not fall under the co-conspirators’ exception to the hearsay rule. There was nothing unreasonable about the verdict. Tsekouras was proven to have provided funds to a co-conspirator to obtain a substantial quantity of drugs, which were then sent to a location for which Tsekouras had the necessary information to pick up the drugs. The trial judge’s core findings of fact did not reflect palpable and overriding error. The inferences drawn by the trial judge from the cumulative effect of the evidence fell well within the field of reasonable inferences available on the evidence.

R. v. Tsekouras, [2017] O.J. No. 1768, Ontario Court of Appeal, G.R. Strathy C.J.O., K.M. Weiler and D. Watt JJ.A., April 11, 2017. Digest No. TLD-May12017002