Date: Mon, 16 Nov 1998 16:48:00 -0600 From: David A Tomlinson Subject: DEALING WITH SEARCH AND SEIZURE >1. Ask to see the search warrant. >NFA: The searchers are required to SHOW you a COPY of the warrant or >TELL you what is in it before executing it, and LEAVE you a copy of it >when they leave.. >100% RIGHT, BUT WHEN THE PERSON POINTING THE MP-5 AT YOU TELLS YOU >TO SHUT-UP AND MOVE AWAY, WHAT WOULD SUGGEST ?? We have been giving some thought to this problem, and the answer appears to be combining CC s. 126 with 494(1) and (3). While the proposed actions below may seem useless DURING the raid, they become VERY significant during the trial or hearing which follows. >2. Ask the person in possession of the warrant to identify himself and >all of those with him and to indicate whether those persons are >authorized to aid in the execution of the warrant. >WITH 40 PEOPLE ALREADY TEARING THINGS APART AND AN ENTIRE SWAT >TEAM ON HAND HOLDING YOU AND YOUR EMPLOYEES AT GUNPOINT, THEY REFUSE TO >IDENTIFY THEMSELVES, HOW SHOULD WE IMPRESS THEM WITH OUR DEMANDS ?? If they have NOT followed CC s. 29(1) EXACTLY, they have violated CC s. 126. CC s. 29(1) says: 29. (1) It is the duty of every one who executes a...warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so. If you request and are refused, do this: Say to the person who refuses or ignores your request: "You are under arrest for violation of Criminal Code section 126." Say to the next nearest available officer, "I hereby deliver this person, who is under arrest, into your custody." CC s. 126 says that anyone who "contravenes an Act of Parliament by...wilfully OMITTING to do anything that it requires to be done... is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years." CC s. 494 authorizes YOU to arrest anyone found committing any indictable offence. CC s. 487.07(1) has an interesting effect. In it, this area of the law is particularly dealing with a warrant to obtain bodily substances for DNA analysis -- but CC s. 487.07(1)(a) was apparently designed to cover ALL warrants, and the language used DOES cover all warrants. 487.07. (1) BEFORE executing a warrant, a peace officer SHALL inform the person against whom it is to be executed of (a) the contents of the warrant, (b).... If the fails to do that, he violates CC s. 126 and is guilty of an indictable offence. >TO ADD A BIT OF CHALLENGE TO THE AFFAIR MOST OF THE PEOPLE WERE IN >CIVILIAN CLOTHES AND WORE NO ID....MOST OF THE TRUCK AND CARS WERE >UNMARKED.... HAD WE NOT TAKEN PICTURES WE WOULD NOT EVEN KNOW WHO HAD >"VISITED" US. >3. Request time to review the warrant and to obtain advice with >respect to the appropriate course of conduct. >EXCELLENT IDEA, WHEN I REACHED FOR THE PHONE TO CALL OUR LAWYER >TWO OF THE SWAT TEAM SMEMBERS WITH MP-5s POINTED AT ME INSTRUCTED ME "TO >GET THE HELL AWAY FROM THE PHONE" THE FACT THAT I TOLD THEM I WANTED TO >CALL MY LAWYER DID NOT SEEM TO IMPRESS THAT AT ALL.... >AS FOR HAVING TIME TO REVIEW THE WARRANT, THEY DID NOT SEEM INTERESTED IN >HEARING ANY ARGUMENTS ON THE SUBJECT.... >IS THERE SOME OTHER APPROACH I SHOULD HAVE USED ?? Say, "I am walking over to that telephone and calling my lawyer." If he replies by threats, ask, "Am I under arrest?" The answer is usually, "No (with threatening comments)." Then say, "Then keep your hands off me and the bullets inside your silly little gun, or I will place YOU under arrest for assault." 265. (1) A person commits assault when (a) without...consent...he applies force intentionally to that other person...[or] (b)...attempts OR THREATENS by an act OR GESTURE, to apply force to another person, if he has, or causes that other person to believe that he has, present ability to effect his purpose; or (c) while OPENLY WEARING OR CARRYING A WEAPON...he accosts OR IMPEDES another person... Go to the phone, call your lawyer, the news media (they HATE publicity for a raid in progress) or anyone else you choose. They can only stop you by arresting you (hazardous, if they have not found any evidence yet) or by physical abuse -- in which case, you say, "YOU are under arrest for assault" - -- then turn to the next cop, and say, "I have just arrested this person and I hereby deliver him into your custody." And, oh, what a mess THAT makes when it finally gets into court. Either they have to take it seriously AT THE TIME, or they have to admit IN COURT that they treated a valid, legal arrest as a joke. No, I am NOT kidding. I did precisely that while observing a search warrant execution, when I was told to sit down and shut up. My lawyer told me they had no authority to tell me that, and that I could roam freely and take photographs throughout the search, as long as I did not interfere with what they were doing. So that is exactly what I did. It drove them NUTS -- but they could not and did not arrest me, because I was operating within the law. Unwilling to have my photographs used in court, they abandoned the case. >4. Read the warrant carefully to determine: the premises covered >WE ADVISED THE OFFICER IN CHARGE THAT THIS WAS INCORRECT...."NOT >IMPORTANT" WAS THE REPLY >the specific documents or objects it covers >WE ALSO ADVISED THEM OF THE ERRORS IN THIS SECTION...."IT DOES NOT >MATTER" REPLIED THE ONE IN CHARGE OF THE RAID.... > the alleged offence(s) subject of the warrant >NEW: Read the DATE and TIMES that the warrant authorizes search. >THESE POINTS WERE CORRECT.... >Often, the warrant is invalid because they were supposed to do the >search YESTERDAY, or EARLIER TODAY, and entry can then be legally >refused. CC s. 488 forbids the execution of a search warrant AT >NIGHT, unless "(a) the justice [who issues it] is satisfied that there >are reasonable grounds for it to be executed by night, (b) the >reasonable grounds are included in the Information [laid before the >justice to get the warrant], AND (c) the warrant authorizes that it be >executed by night." >5. At the same time that the warrant is being reviewed, instruct >someone to make the following calls (if not already made): >legal counsel >I INDICATED ABOVE WHAT HAPPENED WHEN WE >ATTEMPTED TO USE THE PHONE, WE WERE SOME TIME INTO THE SEARCH BEFORE MY >WIFE WAS ABLE TO CALL OUR LAWYER.... Then you were assaulted, as defined by CC s. 265, and were authorized by CC s. 494 to arrest the person who impeded you. >individuals named in the warrant whose offices are to be searched >each should be advised that the search is pending and cautioned >that they must not remove, alter or destroy any documents or other material >in their offices. >HEY THAT MANY PEOPLE CARRYING SUB MACHINE GUNS, >SHOTGUNS, STUN GRENADES, HANDGUNS, ETC, ETC....HAVE MY INSTANT OBEDIENCE >ASSURED.... Why? Consider THEIR problems if they actually USE those firearms. Particularly AFTER you have arrested one or more of them. Their threats are, obviously, bluff -- because they cannot shoot you for trying to call your lawyer, particularly after you have arrested one of them. >>NFA: ADD the local news media >GOOD LUCK, IN OUR CASE THEY CLOSED OFF OUR ROADWAY AND TURNED AWAY >EVERYBODY WHO SHOWED UP.... >FEW PEOPLE APPRECIATE THE "HOSPITALITY" OF ARMED POLICE AT YOU GATE.... That was illegal. They have no authority to stop anyone who walks in, because they cannot TOUCH any person unless they place that person under arrest. They are very reluctant to formally arrest anyone, because that can lead to a lawsuit for false arrest. >>NFA: ADD NFA HQ: (403)439-1394 or NFA- (add prov.branch # here >WE WERE UNABLE TO CONTACT THE NFA FOR SEVERAL HOURS.... That happens. There are too few qualified people available deal instantly with everything. >>NFA NOTE: If told that you must sit down and not use the phone, ask: >"Am I under arrest?" If the answer is "No, not YET!" then no one has >any right to TOUCH you, or to hinder your use of the telephone. >WE TRIED THAT APPROACH BUT I'M A CHICKEN AT HEART, TWO MP-5s >POINTED AT MY MID-SECTION MADE ME THAT WAY.... > If an officer DOES touch you, then ask again: "Am I under arrest?" If >the answer is no, then say: "In that case, take your hand off me -- or I >will arrest YOU for assault." [Yes, you ARE authorized to do that by >Canadian law, CC s. 494(1) and (3)]. >6. Do not "agree" that the search can be expanded beyond the limits >described in the warrant. >IN OUR CASE THEY DID ABSOLUTELY AS THEY PLEASED, THEY HAD GUNS AND >WE DID NOT.... Your lack of guns did not mean that you were powerless under the law. They must obey the law -- and know full well that USING their guns would result in THEIR sitting in the dock. >7. Do not answer any substantive questions. >NFA: More people are convicted from what they SAY than from any other >cause. You have a right to SILENCE. USE IT. Unless you know as much >about firearms law as the NFA does, you have NO IDEA whether or not >you ARE guilty - -- because you may SEEM to be guilty, and yet the NFA >can often tell your lawyer why you are NOT. >YOU ARE QUITE RIGHT, KEEP YOUR MOUTH SHUT.... >8. Do not attempt to impede, physically or ot otherwise, the person >executing the warrant. NFA: That is obstruction, and a criminal offence. >AND IF YOU HAVE A PUMPED UP BUNCH OF PEOPLE CARRYING AUTOMATIC >WEAPONS WITH FINGERS ON THE TRIGGER DON'T EVEN THINK OF GIVING THEM A >PROBLEM.... THESE PEOPLE WILL SHOOT FIRST AND ASK QUESTIONS LATER....THEY >PROVED THAT ON A NUMBER OF RAIDS IN THE PAST FEW YEARS.... Correct -- so move very slowly, giving them NO excuse to claim that you were in any way violent. Be prepared to make quiet comments, to give FULL explanations of what you are GOING to do BEFORE you start moving. "I am going to that phone to call my lawyer. Any objection?" "Yes. Don't move." "Am I under arrest?" "No, but you will be if you start moving." "I am now going to walk slowly to that telephone. You may arrest me if you wish, but do not touch me, or I will be authorized to arrest YOU for assault." THEN start moving toward the phone -- SLOWLY. If he touches you without arresting you, ARREST HIM. If he arrests you, subside -- you can sue for false arrest later. >9. If any documents exist in respect of which solicitor-client >privilege may exist, identify the documents and their location and >indicate to the search officer that the documents are subject to >solicitor-client privilege and that you require that the appropriate >procedures be followed to protect the privilege. >OH YEAH, THAT IS GAURANTEED TO IMPRESS THEM, HELL WE EVEN HAVE >PICTURES OF AN OFFICER STEALING DOCUMENTS.... Right. It does not help at the time (unless there is an officer present who has brains), but it makes a great deal of difference LATER -- in the law court. >10. Keep an accurate log (or copy) of all documents seized. NFA: the >searchers are required to file an "Information" with the court to get >a search warrant. Unless the justice blocks it, the "Information" is >a public document. After executing the warrant, the searchers must >file a "Return" with the court, explaining what they did with the >warrant and listing what they took. SO: After being searched, go to >the court that issued the warrant and request a copy of the >Information and Return relating to that warrant. You should be able >to get them for the cost of photocopying, and they are VALUABLE. >IN OUR CASE THEY SEALED THE WARRANT THEREBY DENYING ACCESS TO ALL >WHO ASKED.... If they do that, that is the state of things. However, often they do not bother to get a court order protecting the "Information" given to obtain the Search Warrant, or the "Return" that they MUST file with the court and which must list every item taken. Those are PUBLIC documents, available from the court that issued the search warrant for the cost of photocopying. Go to that court, IDENTIFYING IT by reading the copy of the search warrant that they MUST give to you (you can arrest them if they try to leave without giving you a copy). Do that IMMEDIATELY -- before they have tome to think that you MIGHT do that. >THEY WILL GIVE YOU WHATEVER RECEIPTS THEY FEEL LIKE GIVING YOU....WHEN >THEY PLEASE.... No receipt? Arrest on of them, and turn him over to another. >ALL OF THE ABOVE INFORMATION IS ACCURATE AND A MATTER OF COURT RECORD. >WE CHALLENGED THE WARRANTS AND THEY WERE DECLARED ILLEGAL.... >WE CHALLENGED THE RAID UNDER TWO SECTIONS OF THE CANADIAN CHARTER, WE >WON.... Right. It is LATER -- in the court -- that all this has its best effect. >I THINK WHAT I'M TRYING TO SAY IS "DON'T EXPECT THINGS TO GO DOWN IN A >SMOOTH AND ORGANIZED MANNER, THEIR PEOPLE ARE RUNNING ON ADRENALIN, YOU >ARE UPSET AND NERVOUS, THE HEAD MAN IS TRYING TO IMPRESS HIS MEN, >DON'T BE A HERO, DON'T DO ANYTHING STUPID, LIVE TO FIGHT >ANOTHER DAY. They may be running on frantic adrenalin -- but YOU should get colder and colder, more and more carefully deliberate. Reset your mind to plan going that route. >SORRY FOR DRAGGING ON BUT EVEN AFTER 3.1/2 YEARS THIS EVENT STILL HAS ME >FURIOUS. And the rest of us. That is why the NFA has been working on your cases for all this time. >JOHN F ST AMOUR Dave Tomlinson, NFA -- CLOG: all Conservative or Liberal Ottawa Governments