How can a court at third hand do anything but hold that there were reasonable and probable grounds to believe the youths may have committed attempted theft?

74. On the basis of this, how can a court at third hand do anything but hold that there were reasonable and probable grounds to believe the youths may have committed attempted theft? How can one second‑guess the policemen on such matters, for example, as the reliability and credibility of the informant? Informants can be unreliable; indeed as Davis v. Russell, supra, shows, they can be relating false tales for their own purposes.

75. Apart from flagrant cases, I seriously doubt that the courts can exercise any effective control over the exercise of police discretion in such cases. So far as arrests in public places are concerned, I do not quarrel with the existence of this discretion. The police's job of maintaining the peace and enforcing the criminal law is difficult enough without fearing being regularly "second‑guessed" about every mistake of judgment in such circumstances. But if I agree that a police officer should be able on evidence such as existed here to arrest a suspect in a public place, I do not think it reasonable that he should be permitted to enter a private home without consent unless he has a warrant permitting him to do so. Invasion of a person's home, in circumstances like these, is too high a price to pay to prevent the possible escape of some criminals, especially for non‑violent crimes like the one alleged in the present case. Not only would such a practice invade the owner's security and privacy; it would often lead to violence as the facts of this case attest. This can, in my view, be even more likely where the owner of the home is not the suspected offender. All the more so if, as happened in Eccles v. Bourque, the police are not in uniform.

76. The danger is not lessened by the fact that despite reasonable and probable belief on the part of the police that an offence has been committed, there may not have been any offence committed at all, a matter that may, if his home is broken into, make the homeowner all the more irate. That police intrusion may occur when no offence has in fact been committed is evident from Davis v. Russell, supra. Indeed, in the present case it is far from clear that the accused had committed attempted theft. The account by the two youths under oath that they were walking home from an entertainment establishment and went into the jeep out of curiosity while walking home is not implausible. They were quite close to home. They were seventeen or eighteen, they had been drinking and, they said, they had never seen a jeep like the one in question and wanted to see what it looked like. They denied having attempted to open cars in the parking lot and said they were merely walking between them through the parking lot. It is interesting that they were never charged with the alleged attempted theft for which entry was made into the apartment.