Eleven Days Without Authorization, Forty-Five Days of Tracking
Police obtained a 30-day judicial authorization to intercept calls on a suspect's phone in a narcotics investigation. On day 9 the interceptors heard the suspect and an unknown man discussing the abduction of a businessman's daughter, a location and a date. The authorising statute permits use of incidentally intercepted communications concerning another offence only if "the investigating agency applies to the court for authorization within 48 hours of discovery." The police made no application and continued intercepting for 11 more days. Separately, on day 3, without any warrant, officers attached a GPS tracker to the suspect's car and monitored it for 45 days; the tracker showed the car visiting a warehouse. Acting on the tracker and the calls, officers entered the warehouse without a warrant, rescued the daughter, and found a shotgun in plain view. The suspect is charged with kidnapping and unlawful possession of a firearm. The defence moves to exclude (i) the kidnapping calls, (ii) the 45 days of GPS data, (iii) the daughter's testimony identifying the suspect, and (iv) the shotgun.
1. Rule on the admissibility of the intercepted kidnapping calls and the GPS data.
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Calls. The statute creates a condition, not a formality: use of incidentally intercepted communications about another offence requires a court application within 48 hours of discovery. The police discovered the kidnapping plan on day 9 and never applied. The original 30-day order authorised narcotics interception only; the kidnapping conversations fall outside its scope from the moment of discovery. The 11 days of interception after discovery are therefore unauthorised. The recordings are unlawfully obtained and inadmissible as evidence of the kidnapping. Some statutes preserve a life-protection exception allowing use to locate a victim in an emergency; if that exception exists, it covers operational use on the day, not proof at trial.
GPS. Attaching a tracker and monitoring for 45 days reveals the whole pattern of a person's movements - residence, associates, habits. That is a search. No exception applies: the automobile exception requires probable cause and permits a stop or a search of the vehicle, not the covert installation of a tracking device; and there is no exigency on day 3 of a narcotics investigation. The installation itself lacked authority, so the entire 45 days of data is unlawful, not merely the portion after some notional threshold. Suppress it all.
Note the asymmetry. The calls were lawful when they began and became unlawful on failure to apply. The GPS was unlawful from the first moment. Say so; it affects the attenuation analysis later.
2. Analyse the derivative evidence: the daughter's testimony and the shotgun.
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The daughter's testimony. Live testimony by a victim who can be independently located is generally not suppressed; a witness is not "evidence obtained" by the search in the way a tangible object is. Attenuation is strong: she is an independent source of the identification, she was present at the abduction, and the prosecution can prove her knowledge without the tracker or the calls. Expect admission, possibly with a limiting instruction that the jury not infer the identification was corroborated by unlawfully obtained material.
The shotgun. Plain view requires a lawful vantage point, immediacy, and obvious incriminating character. The dispatch turns on the entry. Officers had probable cause to believe a life was in imminent danger; a rescue entry is lawful when the danger is real and the entry is limited to the emergency. If so, the gun, seen in plain view during a lawful rescue, is admissible even though the tracking that led there was unlawful: the emergency is an intervening circumstance.
If the entry is not justified by emergency, the gun is tainted, and the prosecution must prove an independent source or inevitable discovery. Note the source problem: if the only route to the warehouse was the unlawful GPS or the unlawfully extended calls, the taint is direct. On these facts the calls also gave the location, but those calls are inadmissible for trial purposes, which leaves the entry resting on whatever independent information existed. Demand that the prosecution identify it.
3. Who bears the burden on each issue, and what attenuation factors decide the outcome?
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Burden allocation. The defence must first show that a search occurred and that it was warrantless. The burden then shifts to the prosecution to prove an exception by a preponderance of the evidence. For derivative evidence the prosecution must prove independent source, inevitable discovery, or attenuation. For a statutory exclusion rule, the statute may reverse or modify this; check its terms before arguing.
Attenuation factors.
- Temporal proximity. The gun was found the same day as the unlawful tracking. Close proximity weighs against admissibility.
- Intervening circumstances. The rescue of a live victim is a powerful intervening event. It weighs for admissibility of the gun and for the daughter's testimony.
- Flagrancy. Eleven days of knowing non-compliance with a 48-hour rule is deliberate. Flagrancy weighs against admissibility of the calls, and it colours the credibility of the claim that the entry was an independent emergency.
Disposition. Suppress the kidnapping recordings and the 45 days of GPS data. Admit the daughter's testimony. Admit the shotgun only if the court finds the emergency entry independently justified, after a hearing on whether the officers would have entered without the tracker.
Exam lesson. Distinguish the source of the probable cause from the lawfulness of the entry. An unlawful search does not automatically poison everything downstream; keep the strands separate and allocate a burden to each.