A search warrant based partly on encrypted communications was thrown out.
Messaging your gun-toting, drug-trafficking friends by way of encrypted message isn't proof that you're a gun-toting drug-trafficker, an Ontario court has ruled.
That useful bit of information comes after police booked a Hamilton man following a search of his room that turned up a 9mm Smith & Wesson unloaded handgun, a sock full of bullets, and a few grams of cocaine. They slapped five criminal charges on him, and hauled him before a judge.
The Hamilton man was caught up in the investigation as police looked into a suspected drug trafficking ring. He just happened to be living at an address that was connected to the investigation.
But his defense lawyers were quick to pick apart the search warrant that allowed the cops to bust down his door, and pry open his safe.
Lawyers went after numerous aspects of the police investigation—the fact that the police never really established that the man was selling drugs, or saw him doing drug deals—but the judge seized on one point in particular.
Under cross-examination, the officer agreed that there was no direct evidence of the man ever being involved in any conversations about drugs. In fact, the strongest evidence of his involvement was his meeting with other targets of the investigation.
One police officer who testified told the judge that he believed the suspects "were using PGP phones to discuss their drug trafficking operation and to prevent police interception" and that he thought several of the men were employing counter-surveillance measures.
But, under cross examination, the officer "agreed that there was no direct evidence of [one suspect] ever being involved in any conversations about drugs."
The judge ultimately called shenanigans on the officer's logic.
"There is nothing illegal about communicating using a PGP. The fact that [suspect A] seems to have been communicating with [suspect B] by way of encrypted messages, combined with the fact that both of them appear to have been security conscious about their conversations, may mean that they were involved in something illegal together," the judge wrote in his decision. "But it may not."
The judge called it an "impermissible leap on the part of the officer" and excluded all the evidence obtained by the search warrant.
Just an important reminder that paranoia isn't a crime.
Drug trafficking, though, still is.