Monthly Archives: May 2013

Search of the Person Incident to Arrest (SITA) and Search Incident an Investigative Detention- a review

The leading case on the principles governing search incident to arrest and the scope of that power remains R. v. Caslake [1998] 1 S.C.R. 51.  Caslake reviewed the restrictions identified in Cloutier v. Langlois [1990] 1 S.C.R. 158.  The leading case regarding searches relating to investigative detention is R. v. Mann [2004] S.C.J. No. 49.

Search incident to arrest. There is a common law power to search incidental to arrest. Underlying this power, traditionally, has been the need for the arresting officers to prevent the escape of the person arrested and to protect themselves by removing from the person arrested any weapon or tool that might facilitate escape and the need to prevent evidence under the control of the detainee from being destroyed.  As a result of a valid and lawful arrest, police can within limits search the person of the arrestee and the surrounding area accessible to the arrestee. The arrest must be lawful. The search itself does not require reasonable grounds beyond the grounds that were sufficient to support the lawfulness of the arrest itself. The search must not be conducted in an abusive fashion.  A search incident to a lawful arrest can only extend to the arrestee’s “immediate surroundings” where the lawful apprehension is effected.  After making a lawful arrest, an officer has the right to search the person arrested and take from his person any property which he reasonably believes:

(1)  is connected with the offence charged;

(2)  may be used as evidence against the person arrested on the charge; or

(3)  is a weapon or instrument that might enable the arrested person to commit an act of violence or effect his escape.

There are at least two ways in which a search incident to investigative detention is different from and more limited than a search incident to arrest.  Search incident to investigative detentions is justified only on the basis of the safety of officers or the public: unlike search incident to arrest, trying to find evidence is not a permissible function of this search.  More importantly, and a prior question to that of the purpose of the search, is the question whether the search is permitted at all. The power to search incident to arrest arises automatically with a valid arrest: that is what it means to say that the search is “incident to” the arrest, that no further justification beyond the arrest itself is needed.  A search power following an investigative detention “does not exist as a matter of course”: rather it only exists where the officer “believe[s] on reasonable grounds that his or her own safety, or the safety of others, is at risk”


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Section 8 violation where police entered residence to search prior to arrival of search warrant or copy

R. v. Cormier 2013 NBQB 91 – between 10 or 15 minutes before the Search Warrants were brought to the home in question, the police entered the home and searched to make sure no one else was in it. They then brought the accused, who was under arrest, into his home to await the arrival of the Search Warrants.  As a result of searching the accused’s home, police seized a 12 gauge pump action shotgun that was unloaded, a single-shot .410-gauge shotgun loaded with a slug, a bunch of Percocet pills and some crack cocaine (estimated by one of the police officers to have a street value of perhaps $800.00) as well as some $1,800.00 in Canadian currency. The cash was suspected to be proceeds of property obtained by the commission in Canada of an offence punishable by an indictment.

The accused was facing five charges: one with respect to the currency; one with respect to Percocet pills; one with respect to cocaine; one with respect to the .410 shotgun and one with respect to the 12 gauge shotgun. Charges with respect to the weapons were based on him having possession of those weapons and allegedly not being the holder of a license under which he may possess them. The charges with respect to the Percocet and the cocaine were possession for the purpose of trafficking.

The Court ruled that the Charter argument came down to the interpretation of Section 29(1) of the Code, which reads

    • “It is the duty of everyone who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.”

The judge said that this was not like a situation where police officers, for example, might see on the CPIC information service that there is a warrant outstanding for someone. If that person was recognized on the street, it might be appropriate for an officer to arrest him before the officer actually has a warrant. It is not practical nor feasible for every police officer to have a copy of every Warrant of Arrest in his hand at all times. In the judge’s view, it would be understandable for the police to arrest based on notice through CPIC that a warrant was outstanding and then present the warrant or facsimile of it to the person arrested at a practical and convenient time thereafter.  The judge said that it is more important that the police properly respect s. 29(1) of the Criminal Code. The administration of justice could be weakened by any diminution of the importance of police compliance with such a plain, simple, old law.

Thus, the judge was satisfied that under s. 24(2) of the Charter, the evidence was obtained in a manner that infringed or denied rights or freedoms guaranteed by the Charter. The evidence shall be excluded, because it was established that having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute, and trivialize and overlook the plain statutory duty on officers executing a Search Warrant.  The judge excluded the evidence seized from the accused’s residence by the police, as well as any certificates of analysis arising from that.

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Are police entitled to search a smartphone incident to arrest?

R. v. Hiscoe 2013 NSCA 48 – this was an appeal by the Crown from the trial judge’s decision to exclude evidence on the basis the respondent’s s. 8 Charter rights had been infringed when the police seized his smartphone in a search incidental to his arrest and downloaded its entire contents. The respondent was charged with possession of cocaine for the purpose of trafficking. Prior to the arrest, the police had the accused under surveillance for some time throughout the day. They had information about his alleged drug activities. They followed him into a drive-in-theatre where they witnessed an exchange between him and the driver of the second vehicle. The accused was driving the vehicle and his mother was in the passenger’s front seat. When this exchange took place, the accused was arrested. The police found cash in the vehicle of the other driver and a bag of cocaine on the ground between the two vehicles. During the arrest procedure, an officer seized the accused’s cell phone which was on the seat of his car. It was described as a “smart phone like a Blackberry”. It did not have a password.  

At the arrest scene, an officer opened the cell phone and reviewed a number of text messages. The officer explained that he seizes cell phones in instances where persons are arrested for trafficking in drugs. He explained that cell phones often contain score sheets, records of drug debts, contacts of other persons and text messages and phone calls in the time leading up to the offence which indicate a negotiation of drug prices and amounts, meeting places and other pertinent details. He said that this information is time sensitive as it may disclose possible stash locations and locations of weapons.  The officer also testified that it is possible that information on cell phones can be deleted remotely. Because of this, the officer indicated that he reviewed the text messages and later that evening when more time was available he transcribed the messages after another officer dictated them to him.

A month later, an officer took the cell phone to the RCMP Technological Crime Unit in Dartmouth, at which time the entire contents of the phone were downloaded and placed on a DVD. Thus the police conducted three separate examinations of information on the respondent’s cell phone: (a) at the scene of the arrest, when the officer reviewed recent texts in a cursory fashion, (b) again on the evening of the arrest, when those messages were transcribed, and (c) about a month later, when the entire contents of the cell phone were downloaded onto a DVD.  It was the observations made by the officer at the arrest scene, the transcribed notes of the text messages made later that evening and the DVD of the full contents of the cell phone which were the subject of the accused’s application.

After a detailed review of the jurisprudence on search incidental to arrest, s. 8 and s. 24(2) of the Charter, the Trial Judge determined that the examination of the smartphone at the scene of the arrest to view recent text messages, and later that day to transcribe those messages, were within the lawful scope of police authority to search incident to Mr. Hiscoe’s arrest for possession of a controlled substance for the purposes of trafficking. That search did not violate his s. 8 rights and thus that evidence was not excluded from evidence.

However, the judge concluded that the complete content download or “data dump” of the smartphone was beyond the scope of a search incident to arrest, and violated the respondent’s s. 8 rights. He gave several reasons for his conclusion. He observed that the data dump was done almost a month after arrest and the search focused on the information held in the cell phone. In his opinion, “most importantly” the full download search was too broad in its scope and ought to have been constrained. It was his view that the police were searching not incident to arrest, but in furtherance of their investigation. Pursuant to s. 24(2) of the Charter, he excluded the evidence from that content download from evidence.

On appeal, it was undisputed that:

(a)  the police had grounds to arrest Mr. Hiscoe at the drive-in for the indictable offence of possession of controlled drugs for the purpose of trafficking;

(b)  the respondent had a reasonable expectation of privacy in the contents of his smartphone;

(c)  the seizure of his cell phone was lawful under the search incident to arrest power, because it was on the driver’s seat at the time of the respondent’s arrest and the officer had a reasonable basis to believe that it contained text messages relating to the apparent drug meeting with the driver of the second car;

(d)  each of the three occasions when the police examined and retrieved information from his cell phone constituted a warrantless search; and

(e)  the police examinations of the cell phone at the scene of the arrest to view recent text messages and later that day to transcribe those messages was within the lawful scope of police authority to search incident to arrest.

What was contested on this appeal was the judge’s finding that the complete data download of the smartphone’s contents exceeded the scope of the power of search incident to arrest.  After examining several pieces of case law in this regard (Caslake, Manley, Giles, Polius, inter alia), the Appeal Court ruled that the data dump was beyond the scope of a search incident to arrest in that there is a heightened expectation of privacy in cell phones.  Further, the prospects of discovering evidence are not the same for every separate informational location housed in the smart phone. It is not a single container. Here there was no attempt to tailor the search to locations where the prospects of locating evidence was reasonable. There must be a reasonable prospect of discovering evidence. That requirement, in the court’s opinion, applied to every separate location which the cell phone contains. This cannot be achieved in a “data-dump”.  Thus, the Crown’s appeal was dismissed.

Although the appeal did not focus on the presence or absence of a password or lock, the court made it a point to address that while it may be another relevant factor in determining whether a search incident to arrest is lawful or within its proper parameters, in the view of this court, it should not be determinative. Whether such a security feature exists or is turned on is not substantively helpful in determining the privacy interests of the accused in the contents of his cell phone, nor the propriety of a police search. Just because a password is not on at the very moment the police seize a cell phone, it cannot mean that the state is welcome and free to roam through its contents.

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Prima facie case (likelihood of conviction) and reasonable grounds to believe

Early in our careers, officers may get confused by all the different views out there regarding when to arrest if a victim or witness is not forthcoming with a statement.  In regards to the arrest, an arresting officer must subjectively have reasonable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view, such that a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest (R. v. Storrey (1990) S.C.J. 12).  

Officers may also be concerned with the “Likelihood of Conviction” or some jurisdictional crown policies that utilize a “reasonable prospect of conviction” threshold that require prosecutors to determine that there is a 51% likelihood of conviction before a charge should proceed.  This policy is not for the officer to become entangled in.  We are an important part of the justice system, as is the crown, defence, judge, witness, and so on, but we each have our roles to fulfill.  We do not have alot of control, if any, when the crown decides to withdraw a charge in jurisdictions where police formally charge someone without requiring prior crown approval, or where the crown decides not to proceed with charges in jurisdictions where prior crown approval is required before we lay the Information.  The crown has its core policies to adhere to and it is not our function to “act” as the crown when deciding whether or not to arrest someone.

We do need to adhere to our various powers of arrest, limitations to an arrest (e.g. 495(2) CC), and so on, but whether or not we will get a conviction in the end is not a requirement in making the arrest.  We do not have to charge everyone we arrest and we do not have to arrest everyone we intend to charge; what we do need is to understand our function in the justice system and remember that we also engage in another important aspect – an investigation.  A thorough investigation may result in charges being laid, consultation with the crown, and other avenues, but a prima facie case or “likelihood of conviction” does not equate to reasonable grounds to believe for a lawful arrest and vice versa.

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“Transferred Reasonable Grounds”

From time to time, the issue arises where one officer, oftentimes a superior officer, directs another officer to arrest someone, to search a car, and so on.  This has become commonly known as “transferred reasonable grounds” in police culture.  The other officer may, at times, be uncertain of this direction.  After all, doesn’t the officer making the arrest have to be the same one that forms the reasonable grounds to do so in the first place?

This issue, inter alia, was discussed in an older case, R. v. Debot 1986 ONCA 994 (R. v. Debot (1989) 2 S.C.R. 1140):

“Frequently, in modern times, the particular police officer making an arrest or conducting a search is not the only officer concerned in the investigation out of which the search or arrest arose. It seems to me to be unrealistic and incompatible with effective law enforcement and crime prevention, when a police officer is requested by a superior or fellow officer to arrest or search a person suspected of the commission of a crime and to be fleeing from the scene, to require that police officer to obtain from his or her superior or fellow officer sufficient information about the underlying facts to enable him or her to form an independent judgment that there are reasonable grounds upon which to arrest or search the suspect.”

The police officer who has reasonable grounds for believing a suspect is arrestable is the one who decides that the suspect should be arrested. That officer may or may not make the actual arrest. If another officer makes the arrest, he or she is entitled to assume that the officer who ordered the arrest had reasonable grounds for doing so. Of course, this does not prove that reasonable grounds actually existed. The original officer who formed the reasonable grounds to believe must subjectively have reasonable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view, such that a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. On the other hand, the officer need not demonstrate anything more than reasonable grounds.

This is often the case in dynamic situations, where time, environment, and situations do not allow for a discussion on the reasonable grounds for the arrest (e.g. domestic incident, moving vehicle).  If time and other factors are not an issue, a discussion of the reasonable grounds may be more favourable to a potential defence argument on the lawfulness of the arrest.

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