Charges against a man who had an Uzi submachine gun in his bedroom have been dropped because Toronto police officers took a shortcut to searching his house when their long night shift was almost over.
It was 6:53 a.m. on Sept. 11, 2017, when officers Ben Caunter and Scott Rogers arrived at Elvis Iniguez’s home and knocked on the door. It was seven minutes before the scheduled end of the last of a week of overnight shifts.
The two officers had been there earlier in the night as well, when Iniguez called 911 asking for assistance. His girlfriend was chasing him around smashing plants at his house, he complained.
When the two officers arrived that first time, Iniguez was outside his house and appeared calm and sober but a woman was visibly agitated. She seemed intoxicated and was shouting, swearing and calling Iniguez names, court heard.
He didn’t want her charged, he told the officers, just out of his house.
The woman asked to gather her things and change her clothes before leaving. With everyone’s agreement she went upstairs alone. The officers then drove her to a friend’s house.
About 30 minutes later, the woman called police.
She said she had seen an Uzi in a bedroom inside Iniguez’s home and ammunition magazines in a Goodlife fitness club bag on the left side of the bed in another bedroom.
The two officers were skeptical. After consulting detectives, they decided the circumstances wouldn’t amount to grounds for a judicial search warrant but also didn’t want to ignore a gun report. Without a warrant, the only option was to ask Iniguez to consent to a search of his house.
When the officers returned and knocked on Iniguez’s door, they did not bring a consent form with them, a printed sheet advising a person of their rights that someone signs before police do a consent search. The form says the person has the right to contact a lawyer and the right to refuse the search.
Iniguez was woken by the knocking and answered the door dressed in a T-shirt and underwear.
The account of what happened next differs considerably.
The officers told court they spoke with Iniguez on the porch and inside his foyer. They told him of a report that he had an Uzi in a bedroom. The officers could not recall the specific words of their interaction, court heard, but understood Iniguez gave permission for them to look around.
He wasn’t told he could refuse the search, or that he could speak with a lawyer about it. Nor was he warned of the potential jeopardy he could face from the search, the officers agreed. It never occurred to them because they didn’t believe they would find a gun and would soon be on their way home.
Upstairs, Caunter found a Goodlife fitness bag containing ammunition magazines. Rogers said he asked Iniguez where the gun was and was directed to another bedroom closet. Inside a bag, Rogers found an Uzi, more magazines and a single bullet.
According to the officers, Iniguez said he had the gun for years and didn’t know what to do with it. Iniguez was arrested upstairs and handcuffed, they said.
Iniguez, however, told court things went differently.
He said the officers burst through the door when he reached to open it, pushed him up against a wall, pointed a gun at his head and shouted: “Where is the f—king gun?” He said he was cuffed immediately and taken upstairs.
He said he never gave consent for a search and told them the gun wasn’t his.
Ontario Superior Court Justice Heather McArthur found inconsistencies in everyone’s testimony.
She found it improbable that the officers immediately shoved a gun in his face when he had been so polite with them just hours before and the officers didn’t even believe they would find a gun.
She rejected his evidence but that didn’t mean she accepted the police version.
“Both officers have vague and unclear memories with respect to what was said to or by Mr. Iniguez before they entered his home, and before they searched for the gun,” McArthur said in her ruling, published Monday.
Without evidence of consent, the search was deemed unreasonable and a violation of Iniguez’s Charter rights.
“The conduct of the officers in this case falls towards the more serious end of the spectrum,” McArthur said. “Mr. Iniguez had a high expectation of privacy in his home.”
Caunter had been a police officer for about 17 years at the time; Rogers for almost seven. They should have known better, she said.
“In my view, the officers’ failure to turn their minds to the requirements for a consent search is not inadvertence but more akin to negligence or willful blindness.
“They were anxious to book off-shift and thought it would be ‘quick.’
“It seems clear that the officers decided that finishing their night-shift on time was more important than ensuring that Mr. Iniguez’s constitutional rights were respected,” she said in her ruling.
The evidence found during the search was excluded from trial, leading to Iniguez’s acquittal, said Roots Gadhia, his lawyer.
“A man’s home is his castle,” Gadhia said.
“It’s the one thing that protects us from the state, that our home won’t be invaded by police without them doing everything to make sure they are acting within the boundaries of their power,” Gadhia said.
Toronto police are aware of the court ruling.
“We can confirm the findings have been passed on to our Professional Standards Unit and will be reviewed,” said Connie Osborne, a spokeswoman from Toronto police.
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