Cataloging the basis for an Inventory Search

Winston Ellis was driving an Acura. He fled from it. The police searched it - they searched him too. They found a firearm in the car - the keys were in his possession. He sought to exclude the firearm. The trial judge admitted it - having found no violation of s8 but a violation of s10. Ellis appealed. His appeal was dismissed: 2016 ONCA 598.

Ellis was seen street racing in an Acura. The officer who spotted him followed the Acura into a neighbourhood where he briefly lost sight of it. He then spotted the vehicle parked in a shared driveway between two residences – neither of which matched the address for the registered owner of the Acura (who was not Ellis). The officer then noticed Ellis walking away from the Acura. He radioed for back-up. Ellis was stopped by responding officers who placed him under “investigative detention” and advised him of such – they did not however advise him of his right to counsel. During the detention Ellis advised the officers that there was an outstanding warrant for his arrest. The officers also learned that (i) his address matched that of the registered owner of the Acura; (ii) that he was a gang member; and (iii) that he was potentially armed and dangerous and had a previous firearms conviction.

The officers conducted a pat down search for safety during which he asked Ellis to empty his pockets. Keys, two cell phones and cash were discovered. The items were immediately returned to Ellis. With respect to the vehicle Ellis denied driving it, but said his girlfriend had earlier in the night (although he later admitted he had left it in the driveway where police had recovered it).

Ellis was eventually arrested for careless driving. The police decided to impound the vehicle, pursuant to section 221 of the Highway Traffic Act, as it was apparently abandoned. Following from that decision, the police chose to do an inventory search. Sgt Martin also testified that the search was incident to the arrest in order to find proof of ownership and to see if the ignition had been damaged. During the search the police discovered a handgun hidden behind a console panel.

At trial Ellis sought to exclude the handgun arguing, inter alia, that the pat down search and the search of his car violated section 8. The trial judge dismissed both arguments (although the trial judge did find a breach of section 10(b) but admitted the evidence under 24(2)). Ellis was convicted. He appealed.

With respect to the pat down search, contrary to Ellis’ submission, R v Mann, 2004 SCC 52 did not pronounce a general rule that a protective pat down search incident to an investigative detention can never extend to a search of the contents of pockets” @28. Where the initial pat down search supports an initial belief that the detainee may be armed a further search is warranted. The further search is logical and constitutionally valid in such situations: R v Plummer, 2011 ONCA 350.

Here the initial pat down revealed objects that could have been weapons, the Court or Appeal concluded:

The officer had a reasonable belief that the appellant might be armed. In these circumstances, it is not the function of this court, many years after the incident and with knowledge of what was actually in the pockets, to criticize the officer for searching the pockets to ensure that the hard objects were not weapons. A police officer in such circumstances is in a dynamic and potentially life-threatening situation and he or she must be able to undertake a protective search in a reasonable manner to preserve his or her safety. [@30]

With respect to the vehicle search, the Court of Appeal agreed with the trial judge and rejected that a search incident to arrest could justify the search.

The police knew that the appellant and the owner of the Acura lived at the same address so it was unlikely to be stolen, and it was not otherwise necessary to seize any ownership or registration documents.  It is also not clear to me what documentation relevant to the outstanding warrants could be discovered in the vehicle. [@42]

However, the police were entitled to rely upon the statutory authority provided in section 221 HTA to conduct an inventory search. In so concluding the court noted the following principles related to “inventory searches”:

  1. Impounding vehicles under section 221(1) imposes on the police the responsibility to keep property safe. In order to fulfil that responsibility the police must have the corresponding authority to search and inventory the vehicle: R v Nicolosi, 1998 CarswellOnt 2476 (CA) @29-30
  2. The fact the police may have ulterior interests, such as their belief a firearm may be discovered, does not render the search unlawful: R v Wint, 2009 ONCA 52 @11; leave ref’d 2009 CarswellOnt 3494 (SCC)
  3. Inventory searches are not limited to itemizing visible property – the police are entitled to open bags and other containers: R v Wint, 2009 ONCA 52 @14-15; leave ref’d 2009 CarswellOnt 3494 (SCC)
  4. Such inventory searches, however, rely on statutory authority, in the absence of such authority, where searches are conducted for policy reasons they will be unconstitutional: R v Nolet, 2010 SCC 24 @53; R v Nicolosi, 1998 CarswellOnt 2476 (CA) @34; R v Caslake, 1998 CarswellMan 1 (SCC) @30

In the present case the car was apparently abandoned – unlike R v Dunkley, 2016 ONCA 597 – the vehicle was left by the accused at a location and in a manner that supported the conclusion it was “abandoned”.

The appellant fled from the police and admitted to trying to avoid arrest on his outstanding warrants. He then parked and locked the car in a mutual driveway to which he had no right or association, and then walked away. His actions up to that point were consistent with those of someone who wished to dissociate himself from the vehicle. [@61]

In the circumstances, the vehicle was properly subject to impound and thus inventory search.

DM

Silence: A right, yes; an innocent explanation, no

Albert Brown lived in an apartment. He was the only male living there. The police obtained a warrant to search the apartment for drugs and drug related items. They found both. In a pair of pants hanging on the bathroom door they found 17 one gram packets of cocaine as well as $1275; elsewhere they found a digital scale with cocaine residue on it and bulk marijuana. Brown was charged. He was convicted. He appealed: 2015 ONCA 220.

On appeal Brown argued (i) that the trial judge erred in not excluding the items recovered in the search under 24(2) and (ii) that the verdict was unreasonable.

With respect to the first ground, the Court of Appeal noted that Brown must establish that “the trial judge erred in principle, considered irrelevant facts, or made unreasonable findings” [@6]. Brown failed to do so, that ground was dismissed.

With respect to the reasonableness of the finding, Brown argued that it was unreasonable to conclude that the pants in the bathroom were his. The court rejected this ground.

The appellant places specific emphasis on the police officer’s opinion that the pants found in the bathroom containing the cocaine “could fit the appellant”. He argues that this is not sufficient to prove ownership of the pants, thus knowledge of and control over the cocaine in a pocket, beyond a reasonable doubt. However, the whole of the circumstantial evidence – including the fact that an investigating police officer said the pants belonged to a man and that the appellant was the only man living in the apartment – was sufficient to find the appellant in constructive possession of the cocaine. [@9].

Notably, the court commented on the fact that Brown had not testified in concluding that the verdict was reasonable:

We note that there was no explanation whatsoever for the presence of the cocaine in the appellant’s bathroom. He chose not to testify. This court, when considering the reasonableness of a verdict, is entitled to treat an appellant's silence as indicating that the appellant could not provide an innocent explanation of his or her conduct: see R. v. Dell, [2005] O.J. No. 863 (C.A.), at para. 35. [Emphasis added]; [@10].

This principle is certainly not new, but it seems that it bears repeating once and a while.

DM

Justification for Delaying section 10 Rights?

Mohammad Mian was driving a grey Chevrolet Malibu. He was noted by police surveillance to be driving that car as part of an investigation into a number of homicides and attempted homicides in Edmonton. This investigation include wires. The principal target was Robin Chelmick. Through the wires the police learned that a drug transaction was going to take place and Chelmick was to be the middle man. Ultimately the police observed three separate meetings between Chelmick and the driver of the Malibu. After the third meeting one of the investigating officers contacted two other police officers, not connected with the homicide investigation; the detective met with those officers and recruited them to participate in the investigation; in particular, they were recruited to conduct a traffic stop of the Malibu when the investigative team alerted them. The officers were instructed to "make a routine traffic stop of the Malibu...they were to use every effort to find appropriate grounds to search the Malibu without having to rely on the information provided...so that the ongoing homicide investigation would not be compromised" [@8]. 

That traffic stop was eventually made. The officers approached Mian, spoke briefly then removed him from the vehicle. He had a cell phone in his hand. A pat-down search revealed $2,710 in cash. Mian was placed in the police cruiser and the officers conducted a search of the Malibu; during that search they located a large amount of cocaine and a smaller baggie of cocaine, additional cash and another cell phone.

22 minutes passed between the time when the officers pulled Mian over and when he was advised of the reason for his arrest and stop; a further 2 to 5 minutes passed before he was advised of his right to counsel.

At trial Mian successfully argued that this conduct violated his rights under section 10(a) and (b). The matter was appealed and eventually considered by the Supreme Court: 2014 SCC 54. 

On appeal the Crown argued, inter alia, that while there was a delay in providing the section 10 rights, the delay was justified on the basis of the need to protect the integrity of the ongoing investigation. Without rejecting the possibility that such delay may be permissible, the Court held that the factual findings in this case (by the trial judge) did not support the argument: 

The Crown concedes that to accept this argument would constitute an extension of the circumstances in which s. 10 rights may be suspended. As the Crown in this case recognizes, “[n]one of the jurisprudence has considered the precise situation presented here” (R.F., at para. 81).  I accept that the jurisprudence does recognize that compliance with the s. 10(b) informational rights may be suspended in exceptional circumstances (see R. v. Manninen,1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at p. 1244; and R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 998-99). However, it is not necessary to decide in this case whether the need to protect the integrity of a separate, ongoing investigation is an exceptional circumstance which may justify the suspension of the s. 10(b) rights. Nor is it necessary to determine whether exceptional circumstances can delay the implementation of s. 10(a) rights. Even if they could, exceptional circumstances do not arise on the facts as found by the trial judge in this case [@74].

As noted by the Court, the trial judge did not find there was sufficient evidence to support the assertion that "immediate compliance with s. 10 of the Charter would have compromised the broader investigation" [@75].

In concluding on the section 10 issue and rejecting the Crown's position on that point, the Court offered the following comments which reveal that while the factual basis was not present, the legal position may not be unfounded:

Crown appeals from acquittals are restricted to questions of law. Findings of fact can only be undermined in limited situations, not applicable in this case, where the trial judge’s alleged shortcomings in assessing the evidence give rise to an error of law (See Criminal Code, s. 676(1)(a); and R. v. J.M.H., 2011 SCC 45 (CanLII), 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 24-39, perCromwell J.). [@75].

With respect to the 24(2) issue the Court again noted the narrow approach in a Crown appeal from acquittal "which limits the Crown’s challenge to the decision of the trial judge to questions of law".

Turning to the seriousness of the breach the Court held that in this case, the 22 minute delay, while not necessarily lengthy, was serious as during that time the police questioned Mian and had, on the findings of fact by the trial judge, no justifiable reason for delaying 10(a) or (b). The Court noted however:

This does not mean that the seriousness of a delay will never be mitigated by extenuating circumstances. Indeed, in an appropriate case, where a Charter breach has been found, a delay of more than 22 minutes may well be justified. In this case, however, these arguments are impermissible attempts to undermine the factual findings of the trial judge. [@81].

In concluding its review of the 24(2) analysis and dismissing the Crown appeal, the Court again eluded to the narrow approach:

However, the Grant test is a flexible and imprecise balancing exercise (see Grant, at paras. 85-86). The question is whether the trial judge considered the proper factors. In this case, the trial judge did exactly that. The trial judge held that the lack of a causal connection between the breach and the evidence, the minimal impact of the breach on Mr. Mian’s privacy rights, the reliability of the evidence, and the seriousness of the offence favoured admission of the evidence. He also held that the egregious and deliberate state conduct, the lack of a valid reason for the Charter breach, and the misleading state conduct favoured exclusion of the evidence. On balance, the judge concluded that society’s interest in the adjudication of the case on its merits was outweighed by the wilful and flagrant state conduct and the attempts to mislead the court. This conclusion was not unreasonable. [@88].

While the findings of fact in Mian did not support the position that there may be other justifiable reasons for delaying section 10 rights, the Court leaves open the possibility that there may be and if so, what the precise scope and application of them will be. Stay tuned.

DGM

Current & Curious: A Little Step Back from Morelli?

Justice Fish in R v Morelli, 2010 SCC 8 wrote: “It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer” [para 2]. Since Morelli, it has often been taken as a given that the impact of the breach will weigh heavily in favour of exclusion when the search of a computer infringes an accused’s s. 8 rights.

Not necessarily so, says the Ontario Court of Appeal in R v Little, 2014 ONCA 339.

Christopher Little murdered his ex-wife and another woman in his home and then called 9-1-1 in the early morning hours of February 12, 2007. When police arrived they found his cell phone on the bed in the master bedroom. The phone was seized because it had blood on it, and because police wanted to confirm it was the phone that was used to call 9-1-1. Once in police custody, however, the phone was subject to an extensive search. Police copied the user data, call logs, contacts, text messages, videos, and photos.

The next day police officers interviewed Little’s employer. They obtained his verbal consent to seize Little’s workplace computer. Police officers then obtained a warrant to search the contents of the computer. The warrant authorized police to examine the computer for “communications” between certain people, and only during a 6 ½ hour period on a particular day. The computer search did not begin until after the warrant expired, and lasted months. Officers searched the entire contents of the computer for other kinds of evidence such as videos and Internet search histories. They did so in spite of advice from a detective that the warrant only authorized a search for “communications” and further searches were beyond the scope of the warrant.

The trial judge found that the cell phone and workplace computer searches violated Little’s s. 8 rights: 2009 CanLII 41212 (ON SC).

The trial judge admitted photos obtained from the cell phone and an Internet search obtained from the workplace computer under section 24(2) of the Charter: 2009 CanLII 42594 (ON SC). The accused was found guilty of two counts of murder.

On appeal, Little challenged the trial judge’s decision to admit evidence obtained from the search of the workplace computer. In particular, he argued that the trial judge erred by describing the impact of the breach as “the lowest end of the scale.”

The Ontario Court of Appeal rejected this argument—implicitly rejecting a general proposition that the impact of the breach will weigh heavily in favour of exclusion when the search of a computer breaches an accused’s s. 8 rights.

The Court held:

Cases from the Supreme Court of Canada subsequent to the trial judge’s ruling, e.g. R. v. Vu, [2013] 3 S.C.R. 657 and R. v. Cole, [2012] 3 S.C.R. 34, support the case-by-case consideration of the nature of the privacy interest engaged and the impact of the s. 8 breach on that privacy interest.  As made abundantly clear in Vu and Cole, this case-by-case approach applies to searches of computers. [para 8, emphasis added]

In R v Cole Justice Fish, writing for the majority of the Supreme Court of Canada, distinguished his own earlier decision in Morelli by ruling that evidence obtained from the warrantless search of a workplace computer should be admitted. The computer in Cole was owned by the accused’s employer. Workplace policies stated that personal use was permitted, but any data was the property of the employer and could be accessed by the employer. Justice Fish held that when assessing the impact of a s. 8 breach the focus is on the magnitude or intensity of the individual’s reasonable expectation of privacy, and on whether the search demeaned his or her dignity [para 91]. He concluded that the impact of the breach was attenuated by both the diminished privacy interest and the discoverability of the evidence [para 97].

In R v Vu Justice Cromwell, writing for a unanimous Supreme Court of Canada, ruled that evidence obtained from the warrantless search of two personal computers should be admitted. Police executed a search warrant on a house believed to be the site of a marijuana grow-op. Police officers found two personal computers in the house and manually viewed their contents. One of the computers was connected to a security camera system, and contained video of the accused’s vehicle coming and going from the house. The video was copied to a disc. The other computer contained the accused’s resume. Justice Cromwell noted that the search was not as intrusive as a full forensic examination. He also found that the police did not gain access to any more information than was appropriate, given the fairly modest objectives of the search as defined by the terms of the warrant. Justice Cromwell concluded that the impact of the breach favoured exclusion, but not strongly so [para 72].

The Ontario Court of Appeal’s decision in Little confirms a more nuanced approach to the impact of the breach on the Charter-protected interests of the accused when a computer has been searched in breach of s. 8. The impact of the breach will be assessed on a case-by-case basis and may not weigh in favour of exclusion where the reasonable expectation of privacy is diminished.

MG