ISET reviewing court decision after judge criticizes inadequate investigation

(Herald file photo)

The Prince Albert Police Service is reviewing a recent provincial court decision after a judge wrote that the service’s Integrated Street Enforcement Team (ISET) shows the unit is either ignorant of or willfully disregarding Charter standards.

The comments came as a part of a decision on Voir Dire by Judge F.M. Daunt, dated Feb. 14. Daunt threw out evidence against the accused, Mustafe Hussein, after determining that the investigation had breached his Charter rights by not meeting the standards required to obtain a search warrant. He had been charged with cocaine for the purpose of trafficking and possession of the proceeds of crime.

Hussein was arrested on Apr. 3, 2019 while ISET officers executed a search warrant in the city. 

Shortly before 9 a.m., an officer received a tip from a confidential source that an “unknown black male” was selling crack from the residence of a woman who had been involved in a previous search. The tip also identified the apartment block that the residence was located in.

That woman had previously been arrested in a search yielding cash, a digital scale, drug packaging material and 32.6 grams of crack cocaine.

The officers, after obtaining a key, conducted what’s called a “no-knock” entry.

While the officer in front was fumbling with the key, the door opened from the inside. Hussein stood there with a piece of pizza in his hand “looking shocked at the sight of several police officers gathered outside the door,” Daunt wrote.

The officer at the front of the stack walked Hussein backwards and forced him down to the floor. Hussein was handcuffed and patted down. An Alberta driver’s licence, a bag of crack cocaine and $250 were found in his pocket.

The woman who lived in the residence was found sitting on the couch in the living room. She was also arrested for possession of cocaine for the purpose of trafficking. Her charges were later stayed.

Daunt assessed the case using tests applied to confidential informers.

When a confidential informer provides a tip to police, before a search is authorized, a justice must ask if the information is compelling, if the informer is a credible source and if police sufficiently corroborated the information. The justice must consider the totality of the circumstances, not treat each of the three conditions a separate tests. The court must look at factors such as the degree of detail of the tip, the informer’s knowledge and past performance of the informer’s reliability or confirmation from other investigative sources.

Daunt found that the inference that the informant gave information within their personal knowledge is “not reasonable.”

First, she said it’s unlikely the informant used the term “unknown black male.’”

“People do not talk like that,” she wrote.

“At best, it is a paraphrase. At worst, it is a sanitized version of a racial epithet. The issuing justice was not privy to the words the informant used. Rather, the justice received only (the officer’s) impression of the informer’s allegation.”

She also found that the lack of detail in the tip undermines the claim that the tipster has first-hand knowledge.

The informant “did not know this person’s name, not even a nickname, could give no description of him and did not know the apartment number or even which floor it was on,” she wrote.

She also criticized the tip’s lack of specifics, calling it “indistinguishable” from mere rumour or gossip, as it describes no specific transaction in the past, present or future. To be confident in the reliability, she wrote, the justice who issued the ITO would need details such as how long the selling has been going on, amounts or frequency, how the seller communicated with customers or advertised wares. The tip might also include habits of the occupants of the apartment, a description of their clothing or appearance and information about the source informer’s knowledge beyond the boilerplate “first-hand information.” 

She took issue with the description given by the tipster.

“Black male is a category, not a description,” she wrote. The phrase ‘unknown black male’ is so broad as to encompass every single member of that race and gender, from babes in arms to aged invalid. … While Prince Albert may not be the most cosmopolitan of cities, neither is it homogenous. ‘Black males’ live here, work here and visit here.”

She found that the police did not attempt to corroborate the tip.

“They did not investigate at all,” she said, writing that the entire process seemingly took place from the officer’s desk. “A single, uncorroborated tip from an informer of recent acquaintance is wholly inadequate to ground an invasion of privacy into a person’s home.”

Apart from the tip, Daunt wrote, police had no other evidence. She noted that the tip came in just before 9 a.m. and just over half an hour later the officer had concluded his investigation, assembled and briefed his team, written a 26-paragraph legal document, drafted a warrant, presented it to a justice of the peace and received a signed search warrant. That urgency, she said, was not explained.

She also wrote that a way to assess how serious a breach is entailed considering other investigative techniques police could have used.

“Here, police did not use investigative techniques lawfully available to them,” she wrote, such as undercover work, surveillance or interviewing potential witnesses.

Police “need to know that a tip from an informer is the beginning, not the end, of an investigation,” Daunt wrote.

“Police have a duty to investigate further. “ She said that in this case, there was no need for such a hasty process. 

“The breaches are serious and systemic,” she said, citing three previous cases in involving ISET searches in Prince Albert based on an informant’s tip where evidence was excluded. 

The two main cases that set out the tests for these types of cases are from 1989 and 1990, Daunt wrote.

 In this case, she found “the grounds for the warrant and for the arrest were paper-thin. The entry into the apartment, although not the worst this Court has seen, was unannounced and violent. The law in this area is not new.

“Our local police, especially ISET, being a specialized unit, should know that one vague uncorroborated tip cannot provide grounds for either a search warrant or a warrantless arrest. This case shows either an ignorance of Charter standards, or a wilful disregard for them. Either way, the police cannot be said to be acting in good faith. This aggravates the seriousness of the breach.”

Prince Albert Police Chief Jon Bergen said the decision has been forwarded to the officer in charge of that area to review it and see if there is anything that needs to be done differently in the future.

He defended the work of ISET.

“We have observed great things come out of this integrated unit,” he said.

“We’ve celebrated the impact they’ve had on serious crimes, including gangs, guns and drug enforcement, and education. I really value the work that has been done by the Integrated Street Enforcement Team.”

That said, Bergen emphasized the importance of ensuring standards are high.

“We have to make sure we are meeting the expectations of the courts,” he said.

“Anything that’s observed by the courts, we need to consider and make sure we’re following best investigative practices, providing the best information to the judge or justice who might provide an authorization to enter a residence.”

The implications, Bergen said, are wide. They go beyond just letting someone who may be otherwise guilty free.

“If a provincial court makes a decision based on our actions, it can have impacts across the country,” he said. “In this instance, there were some criticisms …. So that’s why we have to take a deep look to make sure our practices are meeting the standards, or the expectations, of the courts.”

He closed by thanking ISET.

“We know the members are aggressive combatting drugs, gangs and guns in the community,” he said.

“I thank them for their work and contributions to make the community safer.”