Warrantless tracking or “pinging” of a cell phone…

R. v. Day [2018] N.J. No. 370 – police were engaged in a police chase of a vehicle. The police stopped the chase when it seemed dangerous but determined the owner of the vehicle (Romaine Fudge – no relation). The owner said the vehicle was loaned to Day and Keefe, an individual known to the police and wanted on an arrest warrant. Keefe was known to be the driver of the vehicle. The police obtained Day’s cell phone number from the owner and requested that OCC conduct a cell phone ping to determine Day’s location. The police did not seek a warrant to authorize the search. The police made several pings. The police later located the vehicle at the owner’s residence. Keefe and Day had returned the vehicle and left on foot. There was no evidence that Day was suspected of having committed any offence. Day and Keefe were located and arrested. It was during the arrest of Keefe that Day resisted arrest, assaulted a peace officer, uttered threats to cause death, and breached conditions of an undertaking.

Day argued that her rights under s. 8 of the Charter were violated. The Crown admitted that the pinging of Day’s cellphone was a warrantless search but argued that it was necessary for officer safety because Keefe had a history of violent and unpredictable behavior.  To officers not familiar to this provision of the Code, Section 492.1 sets forth the grounds upon which the police may obtain a warrant for a tracking device such as a cell phone at subsection (2):

A justice or judge who is satisfied by information on oath that there are reasonable grounds to believe that an offence has been or will be committed under this or any other Act of Parliament and that tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.

Section 487.11 of the Criminal Code states:

A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

As you can see, Section 487.11 does not reference subsection 492.1(2). The question remains as to whether, in the absence of a warrant and the statutory authority pursuant to section 487.11, the police may rely on a common law authority to conduct a search in exigent circumstances.

This search (“ping”) was not incident to arrest, but any informed officer will know that there does exist a common law authority to conduct a warrantless search even where, as in this case, that authority is not codified. The issue of exigent circumstances appear to rest on two bases: the first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization could be obtained; the second basis emerges where there is a concern for public or police safety.

In the case of Day, the Crown did not allege that the exigent circumstances relied upon by the officer were in relation to the loss of evidence but rather that the exigent circumstances involved a danger to people. The trial judge ruled that although there may have been some risk to the police officers and to the public during the high speed pursuit of Keefe which could constitute exigent circumstances, that risk was eliminated once the chase was discontinued by police and certainly once the vehicle was located at the home of the lawful owner. There was no evidence that the officers themselves were in danger and the statement of one officer that “they (Day and Keefe) might break into someone’s home” while evading police was groundless and speculative. The judge was satisfied that the officer chose to disregard the rights of Day to be protected against unreasonable search and seizure based on the convenience of locating Keefe and for fear, not that he might cause harm, but that he may evade the police.

The use of Day’s cellphone to track Keefe was willful and in reckless disregard of her Charter rights and had a serious impact on her reasonable expectation of privacy. Given that the offences occurred when Keefe was arrested, there was no basis to believe that they would have occurred at all if the breaches were not perpetrated. The judge ruled that the admission of evidence obtained by police subsequent to the breach would bring the administration into disrepute.

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