R. v. Mikituk Date:, 2012 BCPC 344

Citation: R. v. Mikituk Date: 20120926 2012 BCPC 0344 File No: 70931 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LARRY JAY MIKITUK ROXANNE JULIE MIKITUK REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Crown: C. Burnett Counsel for the Accused: M. Smith Place of Hearing: Kelowna , B.C. Date of Hearing: May 9, 2012 Date of Judgment: September 26, 2012

I. INTRODUCTION [1] The two accused are charged with unlawful production of marihuana, possession for the purpose of trafficking marihuana andfraudulent consumption of electricity. This is the court’s ruling on whether to allow a voir dire regarding a challenge of the validity ofthe search warrant, both on the face of the warrant and on the information used to obtain the warrant. II. THE POINTS IN DISPUTE [2] Counsel for the two accused wants the court to declare a voir dire to address the following five points regarding the validity ofthe search warrant:

i) Whether the search warrant is invalid on its face, by authorizing the search for “theft of telecommunication” as opposed to the“theft of electricity”. ii) Whether the search warrant is invalid on its face, by authorizing a search on the day in question between 11:00 a.m. and 8:00p.m., in circumstances where the warrant was not signed until 11:15 a.m., although it was not executed until 2:25 p.m. iii) Whether there were insufficient grounds for the telecommunication warrant, given s.487.1(4) of the Criminal Code requiresevidence that it was impracticable to obtain a warrant from a local judge or justice of the peace. iv) Whether, on amplification, there were insufficient grounds for the warrant, given the information in support of the warrantmade no mention of the affiant having any knowledge of whether Health Canada had provided a medical marihuana licence to anyone inthe residence.

v) Whether, on amplification, the failure of the affiant to inform the authorizing justice of the fact that a judge in an earlier casehad said disparaging remarks about the credibility of an informant, should render the search warrant of no force and effect. III. THE LAW [3]

Section 8 of the Charter gives everyone the right to be secure against unreasonable search or seizure. Even before the Charter,at common-law, this right was particularly recognized when dealing with any search and/or seizure of the residence of a person (R. v.Colet (SCC), [1981] 1 S.C.R. 2). With the Charter, this right is even further entrenched (R. v. Feeney (SCC), [1997] 2 S.C.R. 13 & (SCC), [1997] 3 S.C.R. 1008). [4] It is trite law that if the search warrant of the residence was conducted with a judicially authorized warrant, then prima faciethat search is lawful.

The onus is on the party trying to contest the validity of the warrant, on the balance of probabilities, to convincethe court the warrant was not lawful (R. v. Wilson 2011 BCCA 252 at paragraph 63). [5] The governing law when conducting such a voir dire review of the warrant was set out by the Supreme Court of Canada in R.v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, where Sopinka J. wrote: The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. [6] In R. v.

Araujo (2000), 2000 SCC 65 , 149 C.C.C. (3d) 449 (S.C.C.), at paragraph 54, the court stated: …An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need toprotect prior authorization systems. Again, the test is whether there was reliable evidence that might reasonably be believed on the basisof which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have beengranted at all by the authorizing judge. [7] In R. v. Nguyen, [2007] B.C.J.

No 1022 (B.C.C.A), the court approved the approach taken by Mr. Justice Josephson of theBritish Columbia Supreme Court in admitting evidence. In that case, Josephson J. stated: In conducting this review, it is not appropriate to conduct a microscopic analysis of the affidavit. (R. v. Melenchuk (BC CA), 1993 24 BCAC 97 and R. v. Chan (ON CA), [1998] O.J. No. 4536). Rather, I must examine the totality ofthe circumstances (R. v. Arason (1993) (BC CA), 78 C.C.C.(3d) 1). Nor is it necessary for the affiant to disclose allof the information in the hands of police (R. v.

Kelly (1995) (BC CA), 99 C.C.C.(3d) 367) nor need the affiant

disclose every fact which might possibly be relevant (R. v. Chambers (1984) (BC CA), 9 C.C.C.(3d) 132). Theobligation is on the affiant to make a full, fair and frank disclosure (R. v. Araujo (2000) 2000 SCC 65 , 149 C.C.C.(3d) 449). [8] In R. v. Dellapenna (BC CA), [1995] B.C.J. No 1526, our Court of Appeal applied a Garofoli analysis with afact pattern where a search warrant had been obtained for a suspected marihuana grow operation.

The court found, on review withamplified evidence, that the warrant should not have been issued, and the following general principle was set out in paragraph 50: The learned trial Judge did not ask himself the question which, in my opinion, as a matter of law he ought to have asked: “Is thisinformation so misleading because of the informant’s carelessness with the truth that the warrant founded on it should be quashed?” [9] The case of R. v. Vukelich [1996] B.C.J. 1535 (B.C.C.A. per McEachern C.J.B.C.) dealt with an appeal from conviction forconspiracy to import cocaine.

The accused claimed the search warrant for his residence was based on misleading statements by theaffiant in the information to obtain the warrant. The court dismissed the appeal, finding there was no automatic right to have a voir direto constitutionally challenge the search warrant. The court addressed the proper threshold for a voir dire to determine the admissibilityof evidence for Charter purposes.

Justice McEachern wrote in paragraphs 17, 20-21, 23, 26: Generally speaking, I believe that both the reason for having, or not having, a voir dire, and the conduct of such proceedings, should, ifpossible, be based and determined upon the statements of counsel. This is the most expeditious way to resolve these problems: see R. v.Dietrich (1970), (ON CA), 1 C.C.C. (2d) 49 at 62 (Ont. H.C.); R. v. Hamill (1984), (BC CA), 14C.C.C. (3d) 338 (B.C.C.A.); and R. v. Kutynec (1991), (ON CA), 70 C.C.C. (3d) 289 at 301 (Ont. C.A.).

I suggestthat judges must be more decisive in this connection than they have been in the past because far too much judicial time isconsumed by the conduct of these kinds of enquiries. Kutynec was followed by a majority of this court in R. v. Feldman (1994), (BC CA), 91 C.C.C. (3d) 256 (B.C.C.A.),affirmed (1994), (SCC), 93 C.C.C. (3d) 575 (S.C.C.). The principal issue in that case related to who bore the onus ofestablishing a Charter breach.

Hinkson J.A., speaking for the majority, essentially adopted what was said in Kutynec, but also discussedthe procedure to be followed in establishing the necessity for a voir dire. Specifically, relying in part upon what was said by Esson J.A.(as he then was) in Hamill, Hinkson J.A. said that defence counsel should, in the first instance, summarize the facts upon which it reliesin support of its submission that there has been a Charter breach.

If that does not persuade the trial judge to embark upon a voir dire, asoccurred in this case, then the defence must go further or fail on this issue, subject to its eventual right of appeal. In both Kutynec and Feldman, there are discussions about what the next stage might be, although there would be nothing to prevent thedefence from advancing its full position in the first instance. Both of these cases suggest that an affidavit verifying the defence positionwith particulars might be necessary.

In this respect, while there is nothing to suggest that the accused cannot file his or her own affidavit,it is recognized that such a practice may be prejudicial, as it could expose the accused to cross-examination. In such circumstances, itmay be acceptable to submit an affidavit sworn on information and belief, and to call the informant. Some leeway in cross-examinationof the informant may be appropriate even if he or she is not established to be an adverse witness.

My conclusions on the foregoing, briefly stated, are that counsel's statements, possibly supported by an affidavit, are a useful first step inpersuading the judge to order a voir dire. If these are found to be insufficient, a more formal approach, involving affidavits and possiblyan undertaking to adduce evidence (including calling the deponent as a witness), may be required. In other words, I would opt for theflexible approach recommended by the Ontario Court of Appeal in Kutynec, rather than the formal procedure described on the earlierappeal in that case.

In doing so, I do not purport to have exhaustively mentioned all the possible steps that should, or may, be taken inthis flexible approach. Based on these authorities, it does not follow that an accused is always entitled as of right to a voir dire in the course of acriminal trial in order to challenge the constitutionality of a search. The trial judge must control the course of the proceedings,and he or she need not embark upon an enquiry that will not assist the proper trial of the real issues.

I reach that conclusionbecause it is clear from cases such as Grant and Garofoli that a warrant remains valid if there is enough left in the supporting affidavit tosupport the issuance of the warrant after all the impugned portions are deleted. In other words, the trial judge does not revisit theapplication for the warrant ab initio in the light of subsequent information, but rather considers whether, as stated in Garofoli at 1452, "...there continues to be any basis for the decision of the authorizing judge" to issue the warrant. [10] In R. v. Wilson [2011] B.C.J. 965 (B.C.C.A. per S.D.

Frankel J.A.) our Court of Appeal again revisited the appropriateness ofholding a voir dire to address alleged Charter breaches in obtaining a search warrant. Mr. Wilson appealed his conviction of productionof marihuana. He questioned the validity of a search warrant for his residence where 594 marihuana plants were found in the residenceand another 594 plants in an outbuilding. At paragraph 69, S.D. Frankel J.A. stated:

In

summary, when an accused seeks to contest the validity of a search warrant by challenging the ITO through cross-examination of the informant, the matter should generally proceed as follows: (

a) The trial judge should determine whether a voir dire is necessary and, if so, whether the calling of evidence should be permitted; (

b) If the judge accedes to the request to hold a voir dire and the accused wishes to cross-examine the informant, then the accused must obtain leave of the judge to do so. If the judge grants leave, then he or she can limit the scope of the cross-examination; (

c) Cross-examination should proceed to the extent permitted by the order granting leave; (

d) Re-examination, if any, should follow the cross-examination; and (

e) The trial judge should determine whether the record as amplified on the review could support the issuance of the warrant. IV.

ANALYSIS THEFT OF TELECOMMUNICATION vs THEFT OF ELECTRICITY [ 11 ] The relevant portion of the search warrant read: Whereas it appears on the oath/affirmation of Constable Paul Mlait a peace officer in the Kelowna RCMP Province of British Columbia, that there are reasonable grounds for dispensing with an information presented personally and in writing; and that there are reasonable grounds for believing that there is a controlled substance or precursor, a thing in which such a controlled substance or precursor is contained or concealed, offence-related property, or thing that will afford evidence in respect of an offence under the Controlled Drugs and Substances Act , namely: marihuana, marihuana plants, documents identifying ownership or pertaining to residency, grow lights, shrouds, air conditioners, filters, electrical ballasts, fans, any literature pertaining to grows, score sheets, any other documents connecting individuals to the grow, electrical meter, any kind of wiring that by-passes the meter, any other device(

s) or material used to divert electricity, relevant to the investigation of the following indictable offence(s): OFFENCE DATE PLACE DESCRIPTION SECTION/ACT 2009-10-09 Kelowna, BC Production of a Controlled Substance 7(1)CDSA 2009-10-09 Kelowna, BC Theft of Telecommunication 326 CCC are to be found in the following place or premises: the residence of Larry Mikituk at 1420 Bentien Rd. Kelowna, Province of British Columbia.

This is THEREFORE, to authorize and require you to enter the said place or premises between the hours of 11:00 am, on 9-Oct-2009 and 8:00 pm, on 9-Oct-2009 and upon entering to search for and seize the things.... [ 12 ] It is clear on the face of the warrant that it was intended to relate to “theft of electricity” and not “theft of telecommunication”. The application for the warrant was by “telecommunication”, hence the confusion. The criminal code

section for theft of telecommunication is s.326(1)(b). The criminal code

section for theft of electricity is s.326(1)(a). The warrant clearly gave authority for a search in relation to the production of a controlled substance. At times, the offence of production of marihuana and the offence of electrical theft by way of a by-pass are so intertwined as to be inseparable. That is the situation where the stolen electricity is used to power the lights for the grow-op.

If the only authorization was for the searching and seizure of evidence pursuant to s.11(2) of the CDSA (which authorizes seizure of “any thing that will afford evidence in respect of the offence”), and an electric by-pass was discovered in the process, the search of that by-pass would be authorized. [ 13 ] If what was seized at the residence was “telecommunication”, in circumstances where there was no information in that regard by the affiant in the information to obtain, then a valid argument could be advanced that any such telecommunication evidence seized was unlawful. In

summary, notwithstanding the error on the face of the warrant, that portion of the warrant authorizing the search and seizure regarding evidence of the production of marihuana was valid, and evidence of an electrical by-pass to power the grow-op is not illegally obtained. The request for a voir dire for that purpose is denied. 11am vs 11:15 am Discrepancy [ 14 ] The wording on the search warrant authorized a search commencing between 11 a.m. and 8 p.m. on October 9, 2009. However, the warrant wasn’t signed by the authorizing officer until 11:15 a.m. on October 9, 2009.

The search warrant was not exercised until 2:25 p.m. that day. Obviously, if police had done a search prior to 11:15 a.m., there would have been a big problem, not the least of which would have been their executing a warrantless search. They could not possibly have known they even had a warrant until after the 11:15 a.m. judicial signing of the warrant. Given the search warrant was authorized more than three hours before it was executed, I find there is no merit to claiming this 15 minute discrepancy invalidated the warrant. The request for a voir dire for this purpose is denied.

Impracticable to Obtain Local Warrant [15]

Section 487.1(1) authorizes a telecommunications warrant where “it would be impracticable to appear personally before ajustice to make application for warrant.”

Section 487.1(4)(

a) adds, “an information submitted by telephone or other means oftelecommunication shall include a statement of the circumstances that make it impracticable for the peace officer to appear personallybefore a justice.” [16] The March 4, 2005 practice direction from the Chief Judge of the Provincial Court reads, “Police agencies within a reasonabledistance of a location where there is or may be a JJP presiding are instructed that when they contemplate applying for a daytime searchwarrant, before they prepare the paperwork, they are required to telephone the judicial administrative assistant or court registry in therelevant location to inquire whether a JJP is available to hear the application in person.” [17] The affiant in the information to obtain the warrant wrote, “That on October 9, 2009 at 09:09, I contacted the Kelowna CourtHouse and was informed that there are no Judges or Justices of the Peace available to view this warrant at this time.” Counsel for theaccused submits that for the affiant to be in compliance with the criminal code requirements for a telecommunications warrant, he oughtto have not only checked with the Kelowna court registry, but also with the Vernon and the Penticton registries to see if a JJP wasavailable in any of those locations.

The registries in those two communities are about a one hour drive away from Kelowna. [18] Our Court of Appeal dealt with this issue in R. v. Erickson (2003), 2003 BCCA 693 , 19 C.R. (6th) 367 whereSaunders J.A. stated: “Impracticable” is not a word commonly used as a legal standard. More common words include reasonable, urgent, emergent, exigent,necessary, and reasonably necessary. Parliament has chosen to use the word “impracticable”, and clothed the process with extraprotection for an accused through the requirement to file a transcription of the conversation.

It is reasonable to conclude that“impracticable” means something less than impossible and imports a large measure of practicality, what may be termedcommon sense. In the circumstances disclosed, particularly the fact that there was no justice of the peace in Kimberly which is some distance from thecommunity with the nearest source of a search warrant, I see no basis to interfere with the trial judge’s conclusion that the test was metfor issuance of a telewarrant. [19] R. v. Ling, [2009] BCJ 267 (BCCA) dealt with an accused convicted in Grand Forks of unlawful cultivation of Marihuana.

Inthe information to obtain the search warrant, contrary to the requirement under s.487.1(4), the affiant made no reference to having soughtthe availability of a local JJP. The affiant simply prepared the application for a telecommunications warrant, and then applied for it at4:50 p.m. on the same date the warrant was eventually executed. The trial judge had noted the Rossland, Nelson and Castlegar courtregistries were all more than an hour’s drive from Grand Forks, but the trial judge found that it was highly unlikely that a JJP would havebeen available.

However, the failure of the affiant to comply with s. 487.1(4) and have some reference to his efforts to look into theavailability of a local JJP, lead to the trial judge finding that this was a flaw which made the warrant invalid. However the evidence wasadmitted at trial under s.24(2) of the Charter and the subsequent conviction was appealed.

The Court of Appeal found that the affianthad made no inquiry whatever as to the availability of a JJP at the Grand Forks Courthouse and he also had made no effort to explain inthe alternative, why it was impracticable to travel to Rossland, Castlegar or Nelson to appear in person before a JJP, who might havebeen present in one of those locations. The court then ruled that the evidence gathered pursuant to the warrant ought not to have beenadmitted under s.24(2) of the Charter and accordingly, an acquittal was entered. [20] The case of R. v.

MacDuff, 2011 BCCA 2 (January 6, 2011) involved a Kelowna telecommunications search warrant of aresidence for alleged electrical theft.

The affiant stated in the “information to obtain” that he was applying for a telewarrant “because itis impracticable for the informant to appear personally because there are no JJPs available at the local courthouse today, or any time thisweek.” At trial that evidence was amplified by the affiant, where he testified that he had called the Kelowna Courthouse prior tocommencing the paperwork for the warrant to see if there was a JJP available and he was told that there were none available that day norwould there be any available for the rest of the week.

The affiant agreed that he had not inquired about the availability of a judge (asopposed to a JJP) to hear the application. The trial judge set aside the telewarrant, given no effort had been made to see if a judge wasavailable to hear the application. However, the trial judge admitted the evidence under s. 24(2) of the Charter. The appeal of thatportion of the decision of the trial judge was dismissed. Madam Justice Bennett, on behalf of the Court of Appeal, included the March 4,2005 practice directive of the Chief Judge of the Provincial Court, which had not been made available to the trial judge.

That practicedirective stated: Judges are not assigned to hear any daytime search warrant applications other than judge warrants. Under no circumstances may asearch warrant application be referred to a judge by a judicial administrative assistant or a court registry without the approval of theapplicable Administrative Judge.

Judge warrants must be referred to the Justice Centre or the Administrative Judge in the applicabledistrict. [21] The ratio of the Ling decision is that a telecommunications warrant is invalid if the affiant fails to comply with the s. 487.1(4)requirement to provide some accepted information regarding why a local JJP is unavailable to hear the application. The obiter regardingthe availability of a JJP in communities more than an hour’s drive away was simply addressing “alternative” methods of compliance withs.487.1(4). To put some broader

interpretation on the ratio would be inconsistent with the words of Justice Saunders in the earliermentioned Erickson decision where it was said that “impracticable” means something less than impossible and imports a large measureof practicality and common sense. For example, if in the lower mainland an affiant in Langley had to check with all of the courtregistries that were within an hour’s drive from Langley, the total number of registries needing to be contacted would be so many that itwould not pass the “common sense” test of being practicable to do so. The same could be said regarding having a Kelowna affiant be

required to check to see if there is a JJP available in Penticton or Vernon. Such a requirement would not be impossible, but it would be impracticable. I find that, unlike the situation in the Ling case, the affiant had sufficiently addressed the issue in the “information to obtain” the search warrant, and there is an insufficient foundation to require a voir dire to determine whether the warrant can be challenged on this ground.

MEDICAL MARIHUANA LICENCE SEARCH [ 22 ] Counsel for the two accused request a voir dire to determine why the affiant police officer who prepared the “information to obtain” the search warrant made no inquiries to first determine whether either accused had a medical marihuana licence. [ 23 ] Section 48(2) of the Controlled Drugs and Substances Act reads: In any prosecution under this Act, the prosecutor is not required, except by way of rebuttal, to prove that a certificate, licence, permit or other qualification does not operate in favour of the accused, whether or not the qualification is set out in the information or indictment. [ 24 ] Similarly, section 794(2) of the Criminal Code reads: The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant. [ 25 ] The codified law is clear and determinative of this issue.

Police had no obligation to prove the negative. There was no obligation on the affiant to first investigate whether the accused had a medical marihuana licence. If it comes to the attention of the court that such a licence exists, and the quantities fit within the allowable amounts of that licence, then this will be a very short trial based on the presumption of innocence. If either accused has such a licence, it would be a simple matter to bring the licence to the attention of the court. No such licence has been brought to the courts attention. This in no way interferes with the presumption of innocence.

It in no way stops the burden of the crown from proving all elements of the offence beyond a reasonable doubt. Accordingly, the application for a voir dire to question the affiant about why the affiant did not make inquiries regarding a medical marihuana licence is dismissed. MISLEADING ON CREDIBILITY OF AN INFORMANT [ 26 ] The affidavit in support of the application for the search warrant contained reference to police relying on an October 8, 2009 report from Greg Shaigec, a qualified contractor for Fortis BC Inc. Mr.

Shaigec advised that he had worked for Fortis BC Inc. in the Revenue Protection Department as a contractor since October 2005 and had been trained in the detection of electrical theft. Mr. Shaigec claimed he had measured the total electrical consumption going onto the property situated at the home in question and he had timed the meter that measured the consumption for the purpose of billing the client. Mr.

Shaigec told police that his measuring indicated that a pre-meter theft of electricity was occurring at the residence and the total theft of hydro was 14,653 watts. [ 27 ] A year earlier, on September 18, 2008, in the case of R. vs. McDuff , Kelowna Registry file 63050, an Okanagan Provincial Court Judge dealt with an accused charged with unlawful production of marihuana and theft of electricity. Mr. Shaigec was also a police informant in that case, and the presiding judge indicated that Mr. Shaigec was “at best unreliable and at worst intentionally misleading”.

The warrant was quashed but the evidence was admitted under s.24(2) of the Charter . The accused appealed the subsequent conviction. That 6 January 2011 appeal decision is recorded at [2011] B.C.J. No 4 , per Justice Bennett. The court upheld the trial judge’s decision to admit the evidence under s.24(2) of the Charter , but the court went further to make negative comments about how the trial judge had dealt with the evidence of the two informants, including Mr. Shaigec. At paragraphs 28 and 29, Justice Bennett wrote: The trial judge then said: The explanations of the informants were unsatisfactory.

They showed themselves to be at best unreliable and at worst intentionally misleading. Future Information from them should not be relied on. As noted above, the trial judge’s comments were based on his misapprehension of the evidence. His comments regarding the investigators, and in particular, any future treatment of their evidence, were in my opinion, not founded on the evidence.

It was an unfair comment and may well have had a deleterious effect on their careers. [ 28 ] I agree with defence counsel that with the case at bar, the evidence of the affiant in support of the application for the search warrant, should focus on what the affiant knew at the time his affidavit was sworn, namely October 9, 2009. If in fact the affiant knew at that time that a judge in Kelowna had stated a year prior (September 18, 2008) that Mr.

Shaigec had given evidence that was at best unreliable and at worst intentionally misleading, and had further commented that future information from that informant should not be relied on, then I would agree that the affiant would have a positive duty to advise the justice being asked to issue the warrant about that earlier comment of the prior judge. I do not agree that it should be deemed that any knowledge of the Crown is knowledge of the police. Counsel provided authority for holding that knowledge of the police is deemed to be knowledge of the Crown, but that does not mean that the opposite is true.

[ 29 ] An issue I have with the request for the voir dire to delve into this issue, is the fact that our Court of Appeal has now (January 6, 2011) held that the trial judge in the McDuff matter got it wrong regarding a claim that the evidence disclosed that Mr. Shaigec was not a reliable informant. While it is true that this would in no way change the disclosure obligation of the affiant in the case at bar back in 2009, it would be a factor in favour of an admission of the evidence under s.24(2) when addressing society’s interests in an adjudication of the case on the merits.

I appreciate that I am not now dealing with any s.24(2) application, but it gives me some pause for reflection given the clear finding of the Court of appeal that the trial judge in McDuff was wrong on this issue. [ 30 ] In the case at bar, Crown has indicated that he believes the evidence of the affiant is that he was not aware of the September 18, 2008 decision at the time he swore his affidavit in support on October 9, 2009.

It would be no time consuming matter to allow a voir dire to cross-examine the affiant on this very narrow issue, however, I will not go the step further that defence is requesting to deem that what the Crown knew should have also been known by the affiant police officer. If the affiant testifies under cross-examination that he did know about the September 18, 2008 decision, then I will allow further questioning regarding why that information was not put in his affidavit to obtain a search warrant.

On the other hand, if the evidence on cross-examination is that the affiant was unaware of the earlier decision, then the evidence for the voir dire will be concluded. ____________________________ R.R. SMITH, P.C.J.