Right to search - hand-held wireless communication device

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ibboyd
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Right to search - hand-held wireless communication device

by: ibboyd on
Thu Dec 16, 2010 10:32 pm

Just throwing this out there for discussion .... Perhaps someone has been in this "pickle".

With the recent change to Sec 78 of the HTA (hand-held wireless communication devices), what would you do in this situation....

-Police officer observes a driver holding cell phone to their ear or even up by their nose as they tic-tac type away a text.
-Police officer initiates a traffic stop (for obvious reason) and informs the driver of the purpose of the stop ..."I stopped you because you were talking on your cell phone" (or relevant statement).
-Driver states "I don't even own a cell phone" ..... because he/she has tucked it into the glove-box after seeing your lights on behind them.....and to my understanding there is ZERO rights to search under this offence (??).

Now the police officer is in a pickle? He/she would like to write a ticket, but the "evidence" to support the charge is out of sight. Of course you (police) know it was a cell phone (lips were yapping, laughing, little black or silver thing held to the side of driver's head) ..... I mean, who really does that? (unless they're on the phone).

Question: Grounds to search surround other scenarios (R.A.D.A.R. detectors or alcohol), but is there anything to "help" the police with regards to this hand-held wireless communication device section of the HTA? Secondly, would anyone ever consider seizing the phone (if it was in plain view) as evidence to support the charge? (Although there aren't many seizure options within the HTA).

Personally I think its a tough one to write and an EASY one to contest.

Thanks for reading,
Your thoughts?


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hwybear
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by: hwybear on
Fri Dec 17, 2010 10:40 am

Why seize the phone? It is different from SMWD and open liquor (where both are prohibited inside a vehicle)
Anyway, it is no different than a seatbelt infraction.....Either see the belt on or off......or see the phone being used or not. Gather evidence accordingly.
Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca


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Simon Borys
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by: Simon Borys on
Fri Dec 17, 2010 11:03 am

Agreed, the evidence isn't "out of sight" now that it's in the glove box, the evidence is the officer's observations at the time the offence was committed. That's what the court will rely on, regardless of whether a phone was actually observed still in the drivers hands after the vehicle was stopped.
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Radar Identified
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by: Radar Identified on
Fri Dec 17, 2010 9:56 pm

ibboyd wrote:Personally I think its a tough one to write and an EASY one to contest.
Respectfully disagree.

Simon Borys and hwybear both covered it. The officer does not need to produce the cellphone as evidence that the individual was talking on it. This is not a drug seizure. The only evidence that needs to be entered for a conviction is that the officer observed the driver using a hand-held communications device when driving. That's it. The officer only needs reasonable grounds, not proof beyond a shadow of a doubt. You'd need to show the officer didn't have an adequate view, or have clear, concise testimony countering the officer's statements, to win if it proceeded to trial. That is much easier said than done.
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