Warrantless search to render aid legal
by Mike Novakowski

A police search for residents requiring assistance was justified, even though officers suspected the house may be a grow operation.

In R. v. Wu, 2008 BCCA 7, a person called police from a mall pay phone around 8 am to report an injured person at the accused’s residence. An officer went to the mall to investigate whether the call was a hoax but discovered nothing useful. Officers checked the exterior of the house. They saw no signs of forced entry but did notice condensation on the windows, a rapidly spinning hydro meter and indications the house was divided into two separate suites. A computer check revealed the residence was a possible marijuana grow operation.

Police knocked on the front door but received no answer. An officer heard what he believed was someone leaving by the back and found Wu standing near the bottom of a staircase. He was promptly detained in handcuffs, searched and questioned. When asked repeatedly, he indicated someone in the house was injured.

Police took him to the rear door and requested he ask the occupant to let them in. Wu’s girlfriend opened the door, police entered and checked the rooms on the main floor. About 30 minutes had passed from the initial telephone call to the time of entry. During their search officers discovered two women and a child and noted a strong smell of marijuana. They forced open a padlocked door leading to the basement, discovered a marijuana grow-op and arrested Wu and his girlfriend. They later obtained a search warrant for the sophisticated operation.

Wu was charged with producing marijuana and possession for the purpose of trafficking. He argued at trial in British Columbia Provincial Court that the initial house search was warrantless and therefore breached his Charter rights. The judge found police had received what they believed to be a 911 call, tried to locate the caller to determine his concern and then went to the house to discover what was wrong.

Wu confirmed someone in the house was injured and a complete search was inevitable. Although these efforts took some time, they did not detract from the necessity for police to enter and search the entire house. They were motivated by a concern to ensure no one needed assistance, rather than looking for the grow-op, the judge found.

“The reluctance of the occupants to respond to the police presence, (Wu’s) sudden appearance at the rear of the house, his confirmation that someone inside needed help and his assertion that the occupants were frightened increased the concerns of the officers,” the judge wrote. She held that Wu’s Charter rights were not breached and the evidence was admissible. He was given a nine-month conditional sentence order and the residence was ordered forfeited.

Wu appealed to the BC Court of Appeal, again arguing, among other things, that the search violated the Charter. The type of phone call made to police had on occasion been found to be a ruse, he submitted, and they should have been more alert to this. He contended the trial judge should have found police were suspicious of the call’s bona fides, since they went to the mall to check it out. Suspicions of a grow-op, not concern for a person needing assistance, was the real reason for their entry and initial search.

Justice Hall, authoring the unanimous judgment, first noted that a warrantless search is prima facie unreasonable and that an individual enjoys a high expectation of privacy in their residence. Police searches may be permitted in a possible emergency situation but such cases are essentially fact driven. In upholding the trial judge’s conclusion finding initial entry wasn’t motivated by suspicion of a marijuana grow operation, Hall stated:

It seems appropriate to observe that, on occasion, premises where marijuana grow operations exist have been scenes of violence and injury. The police officers attending at the house would be entitled to take account of such circumstances in assessing the likelihood or possibility that there could be an injured person inside this house who needed assistance. I consider there was a sufficient evidentiary basis for the judge to conclude, as she did, that the police were motivated by safety concerns at the time they made their warrantless entry into this house. I would not disturb her factual finding on this issue.

When the police entered the premises, they simply made a cursory search of the premises to make certain that no one was injured or needed police assistance. When they had satisfied themselves as to this, they left the premises and obtained a search warrant before conducting a full investigation of the basement area where the marijuana was being grown. In my view, the police did not go beyond what was necessary and appropriate in their initial search of the house. Their conduct was justifiable having regard to all the circumstances (paras. 16-17).

The accused’s conviction appeal was dismissed.