Securing Safety Search Powers

Mackel Peterkin had a gun. He had 40 rounds of ammunition on him as well. He had two cellphones. He had some cocaine. And he had $275 in cash. The police found all of these items when they searched him incident to an investigative detention.

Peterkin was convicted at trial of offences related to the discovery of those items. He appealed: 2015 ONCA 8. He argued on appeal that the warrantless safety search was unlawful; he did not contest, on appeal, the lawfulness of his detention @25.

Watt JA wrote the decision for the Court of Appeal. He outlined the factors which led the police to have concern for their safety – and thus conduct the search – as follows:

Several features of Peterkin’s behaviour caused the officers to be concerned about their safety. Peterkin appeared nervous. He avoided eye contact. He tapped his right hip twice and held his right wrist there. He “bladed” his body so only his left side was visible to the officers. When an officer proffered Peterkin his driver’s licence on his right side, the appellant reached awkwardly for the document, holding his right elbow tight to his hip, turning his whole body and extending only his right forearm to take the licence. When the officers told Peterkin they were going to pat him down, he backed away and began to run. @28

Watt JA then discussed the test to be applied in determining the lawfulness of a search incident to arrest.

The test for determining whether an investigative detention is justifiable under the second prong of Waterfield is one of reasonable suspicion. An investigative detention must be viewed as reasonably necessary on an objective view of all the circumstances informing the officer’s suspicion that there is a clear nexus between the prospective detainee and a recent or ongoing criminal offence: Mann, at para. 34. To conduct this analysis, we must assess the overall reasonableness of the detention decision, testing it against all the circumstances, most notably:
                     i.  the extent to which the interference with individual liberty is necessary to                             perform the officer’s duty;
                     ii.  the liberty that is the subject of the interference; and
                    iii. the nature and extent of the interference.
See Mann, at para. 34.
To be justifiable, the investigative detention must also be executed in a reasonable manner. The investigative detention should be brief and does not impose an obligation on the detained individual to answer questions posed by the police: Mann, at para. 45. @40-41

Of particular note is Watt JA’s reference to MacDonald – the recent Supreme Court decision on “safety searches”:

A second preliminary point concerns the decision in MacDonald. We need not decide whether, as the MacDonald minority argues, the majority, without overruling the prior decision in Mann, has recalibrated the standard to be applied in determining the lawfulness of a safety search. This is because the evidence in this case satisfies the test as articulated in MacDonald: reasonable belief an individual’s safety is at stake.  Further, in my respectful view, we need not determine whether the decision in MacDonald is distinguishable because the safety search with which the court was concerned in MacDonald was not incidental to an investigative detention, but free-standing.
To be lawful, the investigative detention and safety search incidental to it must satisfy the two-stage Waterfield test. The conduct must fall within the general scope of a statutory or common law duty imposed on the officer, and must also involve a justifiable use of powers associated with that duty: Mann, at para. 24; MacDonald, at paras. 35-36. @59-60.

Watt JA thus applied the law, as outlined above, of search incident to investigative detention and offered the following conclusion:

When Peterkin entered the backyard of unit 132 at 296 Grandravine Drive, the officers were investigating a static line 911 call from the unit. In doing so, they were discharging their common law duty to preserve the peace, prevent crime, and protect life and property. Peterkin’s entry into the fenced rear yard also entitled the officers to detain him to investigate a potential breach of the Trespass to Property Act, an arrestable offence under s. 9(1) of that Act.
As the interaction with Peterkin continued, the officers noticed several movements they considered to signal possession of a gun. Taps to the waistband of the appellant’s pants. “Blading” to obstruct their view of the appellant’s right side. Awkward receipt of the driver’s licence when the officers returned it to the appellant. An indication by the officers of a pat-down search for the officers’ safety. Resistance. An attempt to flee. Apprehension and only then a search. This accumulation of factors fully supported a reasonable belief on the part of the officers that their safety was at stake and justified the search. @61-62.

Peterkin is one of the first appellate court decisions to deal with MacDonald. While it does not resolve the issue raised in MacDonald by Moldaver J – which i have previously discussed (see: Safety Searches Post MacDonald; and MCLBulletin 2014.05) – it does recognize that MacDonald dealt with a non-investigative detention search. The search there was “free-standing”. Here, as in Mann and Clayton, the safety search was incident to an investigative detention.


New & Notable: Substance over Form, Safety Searches need that Respect

Geran Williams was walking down the street with a loaded handgun in his waist band. Not only loaded, the gun had a round in the chamber ready to fire. Williams happened to match the description of a person the police had received an anonymous tip about. The police approached him and ultimately found the gun. Williams sought, unsuccessfully, to exclude the gun at trial arguing there had been violations of his rights under sections 8 and 9 of the Charter. He appealed. The Court of Appeal dismissed his appeal: 2013 ONCA 772.

The call cam in shortly after 7 pm on July 10, 2008. The caller indicated that there was a black man wearing a black t-shirt and jeans, about 5'8" tall, with a baby face and hair in dreadlocks walking south at 1800 Martingrove. The caller then hung up. The police knew this area well - there was a history of gun and drug issues at this location.

Officers responded to the area within a few minutes. Some officers, first on scene, identified a male matching the description - although they could not see his face to confirm he had a baby face. Two officers approached that male - he was the appellant, Williams; he was in the group of other males. Officers asked Williams if he was armed, he did not respond. Instead, Williams bladed his body - others in the group did not react in this way. One of the officers then noted Williams make a movement toward his waist. The officers told him to put his hands up and turn around. He did neither. 

The officers then took control of Williams, grabbing his arm and lifting his shirt - the butt end of a handgun was seen and officers arrested Williams. Williams was convicted at trial and appealed.

On appeal two issues were raised. First, the detention. Williams argued that the officers did not have a reasonable suspicion justifying an investigative detention. The Court of Appeal rejected this argument. The standard for investigative detention was "reasonable suspicion" - a standard which the court noted should not be conflated with the more "exacting standard of reasonable belief" [para 22]. To determine this issue the court should look at the totality of the circumstances [para 24]; the mere fact an innocent explanation may be another reasonable interpretation is not fatal [para 24]. In this case the Court of Appeal held the detention was lawful:

The parties agreed at trial and in this court that, on its own, the anonymous tip was not sufficient to satisfy the reasonable suspicion standard.  That said, the tip remained a part, and an important part, of the circumstances that were relevant to a determination of the reasonable suspicion issue.  The tip was current, described the nature of the offence being committed, and contained sufficient particulars of the suspect to enable police to immediately focus on the appellant when they arrived minutes later. 

In our view, the combination of the anonymous tip and what occurred when the appellant encountered the police was capable of supporting a reasonable belief that the appellant might be connected to a gun crime as reported by the anonymous caller.  Nothing more was required [paras 26-27].

Second, Williams argued that the search was unreasonable. This argument was based on the position that lifting his shirt was more than was permissible for an investigative detention safety search. The Court of Appeal rejected that argument as well.  

The police were investigating a possible gun offence.  They apprised the appellant of their purpose.  They asked whether he was armed.  He did not answer their question, but “bladed”, turned away from them.  An officer told the appellant to put his hands up and turn around.  He refused.  The officers approached and took hold of both arms.  The appellant resisted.

One officer lifted the appellant’s baggy t-shirt.  A gun butt protruded from the waistband of the appellant’s pants.  The officer saw it and yelled “gun, gun, gun”.  The appellant was subdued, handcuffed, and placed under arrest. 

Strictly speaking, what occurred was not a pat-down search.  But what occurred was no more, and arguably less, intrusive than a pat-down search.  To characterize what occurred here as unreasonable is to sacrifice substance for form.  In no sense could this search be characterized as the functional equivalent of a strip search [paras 31-33].


New & Notable: Safety Searches Post MacDonald

Tom Le was visiting a friend. He was in the backyard of the friend's residence hanging out. Le had some plans for that night; he hoped to sell some illegal drugs - he had them on his person for that reason. He also had a fully-loaded restricted firearm, namely a .45 calibre semi-automatic Ruger pistol. The gun was secured in a satchel that Le was wearing over his shoulder.

Le would later be arrested and charged with possession of that gun. At trial he sought to exclude the gun on the basis of alleged violations of his rights under sections 8 and 9. Campbell J dismissed his motion: 2014 ONSC 2033.

While Le was visiting his friend, the police happened to be in that same neighbourhood; they were looking for another man who was wanted for some violent offences. The police were directed to the house where Le was visiting. The police were also told that this residence was the source of some problems including suspected drug activity.

The police entered the backyard. Campbell J described what happened next as follows:

As the police officers were speaking to some of the young men, the accused, who had told the police he did not live in the residence, began behaving nervously, and was “blading” his body to the officer speaking to him so as to keep the satchel away from the officer.  The accused denied having any identification on his person and, when asked about his satchel, quickly fled from the area.  Two of the police officers quickly gave chase and were, eventually, able to tackle the running accused to the ground on a nearby street.  As they wrestled on the ground, with the two officers trying to subdue the accused, the police discovered the firearm in the satchel.  Subsequently, they discovered his illicit drugs [para 5].

At trial Le sought, inter alia, to exclude the evidence on the basis that his detention and the subsequent search violated sections 8 and 9 of the Charter. Campbell J rejected both arguments. 

First, Campbell J addressed whether the police were lawfully positioned when they first encountered Le. Relying on the implied invitation to knock and rejecting the assertion that the police had to attend at the front door - rather than walk straight into the backyard - Campbell J held that they were.

In the circumstances of the present case, the police officers clearly had a lawful reason to enter the backyard property and speak to the occupier.  They were pursuing an investigation of a wanted man who, they had been told, frequented that backyard area and had been seen hanging out there.  Further, the police had been told that the 84 Vanauley Walk address was a “problem” in relation to suspected drug trafficking.  In fulfilling their professional duties, the police were lawfully entitled to enter this backyard area in an effort to ascertain if any of the young men was an occupier of the residential premises there, and to pursue their investigations in relation to Mr. Jackson and potential drug trafficking.  There was no signage in the area that suggested the police were prohibited from entering the backyard, and no occupier of the premises ever expressly revoked their implied licence to enter the backyard area.  In short, the police officers were never trespassers in the backyard area of this address.  They entered lawfully pursuant to the implied licence doctrine, and remained there lawfully as they were never asked to leave by an occupier of the dwelling [para 70].

Second, Campbell J addressed the detention issue. In doing so he held that Le was not initially detained but, just prior to his flight, based on his conduct and the intervention of the police which then was directed at him, the police had the basis to detain him for investigative purposes and he was detained in law.

While the arrival of the police into the backyard area of 84 Vanauley Walk temporarily interrupted the conversations of the five young men, none of the police physically restrained the accused or made any demand or direction to him that interfered with his liberty.  The accused was not on his way anywhere, so the accused was not even “stopped” by the police or momentarily delayed on any journey. The accused was not subjected to any physical or psychological restraint by the police.  No police officer told him to do anything.  He was asked only for some identification.  A reasonable person in the position of the accused, at that point, would not have concluded that he had been deprived of the freedom to choose whether or not to co-operate with the police.  Indeed, the accused himself testified that he thought that he was free to leave the backyard area.  More particularly, the accused explained that he went to go inside the townhouse through the back door because he did not think he needed to remain in the backyard, as no police officer was talking directly to him.  According to the accused, it was only when Cst. O’Toole physically prevented him from going into the townhouse that “things changed” and he did not think he could leave.

In my view, the accused was only detained by the police when Cst. O’Toole asked him about the contents of his bag.  Cst. O’Toole may only have been inquiring about the bag as a way of asking whether the accused had any identification documents in his bag, but a reasonable person in the position of the accused, in those circumstances, might well interpret that inquiry as a tactical demand or direction in relation to the bag, which meant that the accused was no longer free to leave and had lost the freedom to choose whether or not to continue to cooperate with the police [paras 87-88].

Third, Campbell J addressed the search issue. In doing so, he concluded that in the circumstances the police had the basis to perform a pat-down - "safety search" - of Le during the investigative detention as there was a basis to believe he had a gun on his person [paras 94-97].

Notably, in undertaking this analysis Campbell J addressed the recent Supreme Court ruling in R v MacDonald, 2014 SCC 3 and whether it changed the standard for safety searches. Noting that whether the standard was reasonable grounds or reasonable suspicion, the officers had the requisite basis to search, Campbell J nonetheless offered the following interpretation of MacDonald.

There is some question whether the decision in R. v. MacDonald changes the legal threshold for lawful police “safety searches” from the traditional “reasonable suspicion” standard to a higher standard akin to the search warrant requirement of “reasonable and probable grounds.”  I do not read the R. v. MacDonald decision as having such an effect.  It is important to recall that, from its judicial inception in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), the courts in the United States and Canada have long applied, in somewhat different language, the standard of “reasonable suspicion” to measure the constitutional permissibility of such “stop and frisk” searches.  The significantly higher standard of “reasonable and probable grounds” has never been the required threshold, for the sound functional reason that it would render such searches legally redundant and practically useless.  If a police officer possessed reasonable and probable grounds to believe a suspect was armed and dangerous, the suspect would invariably be arrested, not merely detained, and would be physically searched as incident to that arrest.  There would be little point in the existence of the police “safety search” power, which has been clearly recognized in the appellate court jurisprudence, if it provided no search powers beyond those already recognized as being incident to an arrest.  Moreover, if police officers are to lawfully conduct investigations in relation to detained (but not arrested) suspects, it only stands to reason that they must be given the lawful means of taking the necessary steps to protect themselves and others during the course of such investigations.  Otherwise, the police would be needlessly placed at serious risk in the performance of their important public duties.  See: R. v. Chehil2013 SCC 49 (CanLII), 2013 SCC 49, at para. 3, 20-24, 27; R. v. MacKenzie2013 SCC 50 (CanLII), 2013 SCC 50, at para. 74; R. v. Clayton and Farmer, at paras. 20, 28-30, 43-49, 81-84, 98, 103-104, 118, 123-126; R. v. Simpson 1993 CanLII 3379 (ON CA), (1993), 12 O.R. (3d) 182; 79 C.C.C. (3d) 482 (C.A.), at p. 202; Arizona v. Johnson, 129 S.Ct. 781 (2009), at p. 784; R. v. Crocker,2009 BCCA 388 (CanLII), 2009 BCCA 388, 275 B.C.A.C. 190, at paras. 62-72, leave denied: [2010] 1 S.C.R. viii; W.R. LaFave, Search and Seizure – A Treatise on the Fourth Amendment (2005, 4th ed.) at § 9.6(a); J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (2010, 8th ed.) at pp. 709-712.

In R. v. Mann and its progeny the courts have confirmed the existence of the police power to detain individuals for investigative purposes and, where the police have “reasonable grounds” to suspect the detainee is armed and dangerous, to conduct a brief frisk or pat-down search to ensure their own safety and the safety of the public as they conduct such investigations.  In my view, R. v. MacDonald is but an application of that well-established warrantless search power in a particular factual context, namely, where the search involves police entry of the confines of a private residence, where there is an increased expectation of privacy.  See: R. v. Zargar2014 ONSC 1415 (CanLII), 2014 ONSC 1415, at paras. 29-32.  Indeed, in R. v. MacDonald, the Supreme Court expressly purports to apply R. v. Mann in this factual context – not overrule it (or the many subsequent judgments that have clarified and applied it).  The confusion in relation to this legal threshold has arisen, it seems to me, from the use of the phrase “reasonable grounds” to describe the threshold of “reasonable suspicion” or “articulable cause,” as this same terminology is also used to describe the higher threshold of “reasonable and probable grounds.”  See: R. v. Mann, at paras. 33-35, 40-45, 63-64.  Accordingly, it is important to recall that, in this particular context, the term “reasonable grounds” is used to describe a threshold of reasonable suspicion, not a threshold of reasonable probability [paras 99-100].

In a recent issue of  Mack's Criminal Law Bulletin on Westlaw's CriminalSource, I discussed MacDonald. Therein I noted that MacDonald was not a case about investigative detention safety searches but rather non-detention searches - while it appeared that MacDonald imposed a standard of reasonable grounds for safety searches (not reasonable suspicion) that standard would only apply in the context of non-detention searches. For investigative detention safety searches the standard remained one of reasonable suspicion - MacDonald did not affect that.

Campbell J has interpreted MacDonald as not changing the standard at all. His reasons for so concluding are compelling. 

Going forward there will no doubt be other interpretations of MacDonald - likely until the Supreme Court again addresses this issue and explains what precisely they meant.


New & Notable: What's that bulge in your pocket...the final word from the SCC

The bottom line

Aucoin was stopped by Cst. Burke for motor vehicle legislation infractions.  The officer felt it necessary to have Aucoin sit in the rear of the cruiser while the ticket was issued.  Before securing Aucoin in the rear of the cruiser, Cst. Burke did a pat down search and detected a package, which Aucoin said was ecstasy, in Aucoin’s pocket.  Aucoin was arrested and found to be in possession of a large quantity of cocaine and pills. 

In a previous post, Dallas discussed the Nova Scotia Court of Appeal ruling in Aucoin: 2011 NSCA 64. The Supreme Court of Canada heard the appeal from that ruling. The majority, authored by Moldaver J, held that is was not reasonably necessary for the officer to place him in the police cruiser and accordingly, that searching for security reasons before placing him there could not be justified and was a violation of s. 8 of the Charter.  However, the majority went on to hold that the evidence was admissible pursuant to s. 24(2) of the Charter: 2012 SCC 66


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