Romaniuk's
Search Warrants Considered

Proper Uses of the
Exigent Circumstances Provisions

Hot Pursuit

Pursuant to Common Law and Charter Interpretations

• In plain English - literally chasing a suspect and be on his heels when a warrantless entry to the premise is made.
• The SCC has defined hot pursuit as: "Generally, the essence of fresh pursuit is that it must be continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction {para (ii)(b)(iii)}
  [Macooh, D.J.; SCC]."
• "It is well settled at common law that police officers have the power to enter private premises to make an arrest in hot pursuit {para (ii)(b)(i)}." "[The suspect] has gone to his home while fleeing solely to escape arrest {para (ii)(b)(ii)}
  [Macooh, D.J.; SCC]."
• This common law ability extends to the enforcement of both federal and provincial statutes {para (iii)(i)}
  [Macooh, D.J.; SCC].
• To avail themselves of this ability the police must first have:
  
  
  1. "Entry can be made against the will of the householder only if (a) there are reasonable and probable grounds for the belief that the person sought is within the premises (b) proper announcement is made prior to entry {p. 744}
     [Eccles v. Bourque; SCC]."
  2. Police may enter a private dwelling without permission to make a warrantless arrest if the requirements in Eccles, supra, are met and the arrest is for an indictable offence
     [Landry, P.; SCC].
  3. Police have reasonable grounds for the arrest developed on both objective and subjective grounds
     [Storrey, R.P.; SCC].
  
  
• Police must be able to articulate grounds for an arrest before they can engage in a hot pursuit entry. Here to enter a garage attached to a house to investigate a potential impaired driver. Without articulated grounds the evidence was excluded at trial
  [Hyde, M.L.; {paras 31 and 34}; ABPC].
  Also review [Clements, A.H.; {para 18}; ABPC].
• In this case the accused fled from the vehicle he was driving on being pulled over. "The video confirms Constable Frost’s testimony that the Applicant fled the scene and abandoned the car. There is no evidence that the Applicant returned to the vehicle. The sniffer-dog search and the subsequent search of the trunk were conducted to determine whether there were narcotics in the vehicle, which were not apparent or in plain view. The search was done after the Applicant fled the scene. Therefore, even if the Applicant had, at some point, some expectation of privacy before abandoning the vehicle, the search which followed his abandonment of the vehicle did not constitute an intrusion because there was no subsisting privacy interest. I conclude that there is no evidence before this Court that the Applicant had any reasonable expectation of privacy with respect to the vehicle. Therefore, the search did not trigger the protection under s.8 of the Charter {para 30}
  [Krafczyk, J.J.; ABQB]."
• As the result of a hot pursuit: "The respondent could not thwart their demand that he stop by escaping to the sanctuary of his garage. The parking garage was an element of the respondent’s dwelling but, as the trial judge found, one does not have the same reasonable expectation of privacy in such a parking garage as one has in one’s dwelling {para 29}
  [Clarke, P.; OCA]."
• Reminder - to execute an arrest warrant, where consent to enter cannot be obtained, a Feeney warrant must be used
  [Feeney, M.; SCC].
  Feeney Warrants are found in the Criminal Code at
  s. 529 CC,
  s. 529.1 CC, and
  s. 529.4 CC.
  However, when accused persons open the door and then begin to flee into the residence after being advised that they are under arrest, it is not necessary for police to stop and obtain a Feeney warrant. That is a hot pursuit
  [Hope, J.; {para 29}; NSCA].
  That is the situation contemplated by s. 529.3 CC
  [Puyenbroek, Y.V.; {para 30}; OCA].
  Nevertheless; if the investigator spots the accused inside the residence, knocks and the accused refuses to answer the door, the investigator must obtain a form of warrant to enter. Here the officer arrived well after a motor vehicle accident. "In my opinion, the learned trial judge erred in concluding that the doctrine of fresh or hot pursuit was a lawful justification for Constable Prentice's entry of Mr. Westrum's home. It follows that the Crown has not met the burden of overcoming the presumption and that the search was unreasonable and was a breach of Mr. Westrum's s. 8 rights {para 30}
  [Westrum, D.; BCSC]."
  Nor can police use the 'hot pursuit' exemption to enter a residence without an entry warrant simply because they suspect that the accused may be there
  [Wadman, W.R.; {para 26}; NSPC].

Subsection continued on
Page PR 39