What's that bulge in your pocket?

Investigative detention is undoubtedly one of the most complex and troubling area of the law for police officers.  The ever changing face of the law in this area and the infinite number of scenarios that exist make it difficult for officer's to understand and properly apply the law.  Likely this is one of the reasons by these detentions are usually one of the top generators of complaints by the public.

Fortunately - or perhaps not - the Supreme Court is set to reconsider investigative detention in R v Aucoin, 2011 NSCA 64

Brendan Aucoin was stopped by the police because the plate on his car was registered to a different kind of car.  After speaking with Aucoin during the stop the officer noted an odour of alcohol.  As a result he made a roadside demand.  Aucoin sat in the backseat of the officer's cruiser with his feet outside the car to provide the demand.  He passed, but did have alcohol in his system.  Given he as a newly licenced driver he was in violation of the Motor Vehicle Act which required newly licenced drivers to have zero BAC.  As a result the officer decided to give him a ticket.  The officer decided it would be safest to put Aucoin in the backseat of the cruiser to issue the ticket as the vehicle was being towed and there was a lot of traffic. 

Before placing him in the cruiser the officer did a pat down for safety reasons.  During the pat down search the officer felt something in Aucoin's pocket.  Aucoin said it was Ecstasy.  He was arrested.  A subsequent search revealed cocaine.

At trial Aucoin sought to exclude that evidence arguing that the officer was not entitled to do the search.  The trial judge dismissed the motion citing the seminal decision of R v Mann, 2004 SCC 52.

Aucoin appealed.  The appeal was dismissed.  The Court of Appeal held:

The issuance of the motor vehicle ticket to Mr. Aucoin was the final step of Cst. Burke’s investigation into Mr. Aucoin’s breach of the MVA. He had a duty to complete this stage of the process. He had to do this in a situation where he had essentially no back-up, it was late at night, he needed the light in the front seat of the police car to write the ticket, he could not place the appellant in the car he had been driving because it was being removed, and because it may be a continuing offence given the alcohol in the appellant’s blood, and he was concerned the appellant may take off if left on his own outside the police car. In such circumstances, the brief detention of the appellant in the back seat of the police car is within the scope of the doctrine of investigative detention and is reasonable.

Having decided to place Mr. Aucoin in the back seat of the police car, it was also reasonable for the officer to do a pat-down search to ensure that the appellant had no weapons that he could use to harm the officer or himself [paras 26-27]; [emphasis added].

Importantly the court noted that this practice would not necessary be permitted in every circumstance.  But, in the present case, where the officer articulated the basis for the search - that he had safety concerns and was effectively on his own late at night, the search was justified.

This case seems to be largely a reply of Mann and if so, Aucoin's appeal should be dismissed.