R. v. Sesay 2013 MBCA 8 – the accused was stopped by police after he rolled through a stop sign. The accused told the officer the vehicle belonged to a friend. Results of a computer check included cautions the accused was possibly armed and dangerous, was a known gang member and suspected drug dealer, and was violent or assaultive. The officer also did a check on the passenger which revealed he was subject to a bail undertaking that included conditions:
- (a) that he was not to be in possession of an illegal substance;
- (b) that he was to produce a copy of his undertaking upon police request;
- (c) that he was not to possess a cell phone, blackberry, pager or other electronic communication device; and
- (d) that he was to surrender to a search of his person, or any vehicle he was in, upon request of a police officer.
The officer asked the passenger to provide a copy of his undertaking, and when the passenger was unable to do so, he was arrested for failure to comply with his undertaking. An incidental search of the vehicle led to the seizure of 24 pieces of crack cocaine packaged in a manner consistent with street sales, and cell phones. Neither the accused nor the passenger claimed ownership of the drugs and phones. At trial, the accused objected to the introduction of the evidence seized during that search based on a breach of his Charter rights. Following a voir dire, the trial judge ruled the evidence was admissible. The trial judge found the traffic stop was lawful and the search of the vehicle on the basis of officer safety incidental to the passenger’s arrest was reasonable and reasonably conducted. The accused called no evidence at trial and was convicted. He was sentenced to three and one half years’ imprisonment, less six months’ credit, to be served consecutively to an extant two-year sentence. The accused appealed.
The MBCA cited a summary from R. v. Majedi 2009 BCCA 276 (that in turn cited R. v. Caslake 1998 1 S.C.R. 51 and R. v. Nolet 2010 SCC 24):
- Officers undertaking a search incidental to arrest do not require reasonable and probable grounds; a lawful arrest provides that foundation and the right to search derives from it;
- The right to search does not arise out of a reduced expectation of privacy of the arrested person, but flows out of the need for the authorities to gain control of the situation and the need to obtain information;
- A legally unauthorized search to make an inventory is not a valid search incidental to arrest;
- The three main purposes of a search incidental to arrest are: one, to ensure the safety of the police and the public; two, to protect evidence; three, to discover evidence;
- The categories of legitimate purposes are not closed: while the police have considerable leeway, a valid purpose is required that must be “truly incidental” to the arrest;
- If the justification for the search is to find evidence, there must be a reasonable prospect the evidence will relate to the offence for which the person has been arrested;
- The police undertaking a search incidental to arrest subjectively must have a valid purpose in mind, the reasonableness of which must be considered objectively.
The Appeal by the accused was dismissed. The search of the vehicle was undertaken for a valid reason and was performed reasonably. A reading of the police evidence revealed officer safety may not have been the primary reason for searching the vehicle after the arrest of the passenger, but it was a relevant factor. The officer operated under the premise of a caution the accused was a gang member, armed and dangerous and known for violent and aggressive behaviour. The circumstances objectively supported a decision to embark on a further search of the vehicle to look for prohibited weapons and ensure police security. In addition, following the arrest of the passenger for breach of undertaking, it was open to the officer to seek further evidence of a breach of the same undertaking.