No warrant led to impaired acquittal

AIRDRIE — An Alberta man has been acquitted of drunk driving after a judge ruled police violated his rights by entering his garage without a warrant.

AIRDRIE — An Alberta man has been acquitted of drunk driving after a judge ruled police violated his rights by entering his garage without a warrant.

Judge Peter B. Barley said two officers were not justified in their actions when they entered Michael Laurence Hyde’s open garage in 2008 after suspecting him of driving drunk.

Hyde’s vehicle was spotted being “driven badly” by an off-duty Airdrie Mountie about 11:15 p.m. on Oct. 3, 2008.

The vehicle had “rubbed the right curb on three occasions,” according to Staff-Sgt. Dennis Esayenko, who followed Hyde while he phoned his detachment.

Esayenko followed Hyde into his open garage and identified himself as an officer before an on-duty officer arrived to take over the investigation, charging the man with impaired driving.

In court, the defence argued that officers were not authorized to enter the garage and therefore any observations made thereafter were inadmissible, as it was the result of an unauthorized search, the decision says.

The decision says both officers failed to communicate with Hyde before entering the garage.

Barley agreed that because the entry was not permissible under the doctrine of hot pursuit and was investigative in nature, the result was an improper search and a violation the Charter.

“In this case, although the act of walking through an open door is initially benign, the result is serious,” Barley wrote in his decision released Jan. 28

“It is an unauthorized entry into a portion of the dwelling house that is subject to an expectation of privacy, for the purpose of investigation of a suspected crime.

“This is a serious breach of a Charter protected interest of the accused.”

While prosecution of impaired driving is of critical importance to society considering the carnage it causes, it is also important that a judicial system respects the rights of all citizens, Barley ruled.

“In the present case the entry into a dwelling house without a warrant to conduct an investigation is a clear violation of the sanctity of the home, one of the most jealously guarded right of a citizen,” Barley concluded in the decision. “Accordingly, all evidence obtained after the entry into the garage by both officers is not admissible in this trial.”

Barley’s decision is being appealed and a hearing is set for June 4 in Calgary Court of Queen’s Bench.