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Police had no right to cellphone evidence, say lawyers at St. John's home invasion trial

Mitchell Nippard (left) and Gary Hennessey, shown in provincial court in St. John’s this morning, are two of four men facing more than 150 charges between them for a series of violent home invasions in St. John’s, Mount Pearl and Paradise a year ago. The others are Tyler Donahue and Abdifatah Mohamed. — Tara Bradbury/The Telegram
Mitchell Nippard (left) and Gary Hennessey, shown in provincial court in St. John’s this morning, are two of four men facing more than 150 charges between them for a series of violent home invasions in St. John’s, Mount Pearl and Paradise a year ago. The others are Tyler Donahue and Abdifatah Mohamed. — Tara Bradbury/The Telegram

Case of four men facing 150 charges between them gets underway in St. John’s

The trial of four men accused of committing a series of violent home invasions began this morning with an application from defense lawyers to exclude evidence. In particular, evidence obtained by police after the cellphone of one of the accused men began ringing as he was being searched.

Tyler Donahue, 24; Gary Hennessey, 33; Abdifatah Mohamed, 28; and Mitchell Nippard, 26, are accused of 150 charges between them, including robbery, forcible confinement, assault with a weapon, break and enter and breach of court orders in connection with the home invasions, which took place in St. John’s, Mount Pearl and Paradise over a week in February 2017.

Nippard is also facing charges of animal cruelty for allegedly shooting two dogs during one of the incidents, killing one of them.

The men have all pleaded not guilty to the charges.

As the trial began in provincial court in St. John’s Monday morning, RNC Const. Michael Hunt took the stand. Hunt said he had responded to a report of a break-in on Angels Road in Paradise on Feb. 9 of last year, and other officers had located a Mazda believed to be the getaway vehicle ditched in a snow bank. Inside was a wallet containing Nippard’s ID, Hunt said.

He said he then joined another officer, who had stopped a vehicle nearby and found Nippard and Hennessey inside. Hunt said he detained Hennessey and was in the process of searching him when Hennessey’s cellphone rang. Hunt took it out of Hennessey’s coat pocket and found the screen still lit, with a text message from Donahue in plain view. “Next to sign on highway, C.B.S. next four exits,” it read.

“Your honour, I want to reiterate that I did not search the phone, this message was in plain view,” Hunt testified.

Hunt said he finished searching Hennessey and radioed the information on the text message to other officers.

The men are accused of forcing their way into the four homes armed with weapons, tying the victims up and assaulting them, and taking money and goods. Police believe the homes were specifically targeted.

The police officer said he was aware of the “magnitude of violence” involved in the previous home invasions and had searched Hennessey for weapons. He didn’t find any, he testified.

Derek Hogan and Michelle Elliott, lawyers for Hennessey and Donahue, respectively, argued Hunt had no right to remove the cellphone or use the information gleaned from the text.

“The officer knew this was not a weapon. He knew it was a phone and therefore had no right to remove it from (Hennessey’s) pocket,” Hogan told Judge Mike Madden, saying the message wasn’t in plain view until the phone was taken out of Hennessey’s coat.

Crown prosecutor Chris McCarthy argued Hunt had reasonable cause to remove the cellphone. Do to the nature of the crimes, “an enhanced search with extra care is not unjustifiable,” McCarthy said. “The level of danger faced by officers and the public in relation to these home invasions was high.”

Madden will render his decision on the defense lawyers’ application to exclude the evidence Tuesday morning.

The men are accused of forcing their way into the four homes armed with weapons, tying the victims up and assaulting them, and taking money and goods. Police believe the homes were specifically targeted.

Hennessey, Mohamed and Nippard are in custody and sat together in one dock during Monday’s proceedings, while Donahue, who is not in custody, sat alone in another. Mohamed has chosen to represent himself at trial and told Madden he was prepared for things to get underway.

A fifth man — 28-year-old Mohamed Salim of Toronto — had also been wanted in connection with the home invasions, but he was found dead March 3 in a quarry off the Trans-Canada Highway near Paradise. His death was deemed unsuspicious.

Twitter: @tara_bradbury

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