The pocket dial is a common occurrence in the age of smartphones.  Most people have made them and most people have received them.

In an Oregon city recently, the recipient of the pocket dial was a 911 operator.  Normally this would be an honest mistake that could be rectified with an explanation and an apology.  The problem for the caller was that she was in the midst of a conversation about a drug deal.  Using GPS technology the police were able to locate the location of the call and then went to intercept the drug deal.  The story was reported here.

Naturally the lawyer in me is wondering what Charter issues may arise had this story happened in Canada.  Had the police seen the drugs in plain upon their attendance then I’m not sure there would have been any issues.  If the drugs weren’t in plain view, though, then I would still think any detention would still be investigative (it’s unlikely they would have had enough evidence to know that the people they found based on the GPS signal actually were dealing drugs based on hearing only a conversation).  This allows a pat-down search and requires rights to counsel before questioning.  In investigative detention circumstances, however, a common question is whether the police were acting on a hunch – if they were then the detention may not pass Charter scrutiny.  Given the conversation heard by the 911 operator and subsequent location by GPS then an argument could be made that they had more than this hunch and an actual subjective belief that drug activity may have been occurring.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.