Physical boundaries of search incident to arrest - Sophie Collier
Section 8 of the Canadian Charter of Rights and Freedoms (“the Charter”) guarantees the right to be safe from unreasonable search and seizure. In R v Ibrahim (“Ibrahim”), a decision by the Manitoba Court of Appeal (“the MBCA”), the accused was appealing his conviction of possession of cocaine for the purpose of trafficking on the basis that his rights under section 8 of the Charter were violated.
The accused in Ibrahim was convicted of possession of cocaine for the purpose of trafficking, possession of proceeds of crime, failure to stop a motor vehicle while being pursued by police, breach of an undertaking, and driving while suspended. Out of this slew of convictions, the accused appealed his conviction for possession of cocaine for the purpose of trafficking on the grounds that his section 8 Charter rights were violated.
In Ibrahim, the trial court had made a mistake regarding one of the facts used to support its finding that the search was incidental to the accused’s arrest, but that misapprehension did not constitute an overriding error that affected her determination of the lawfulness of the search. The accused had not otherwise demonstrated that the trial judge erred in her application of the law to the facts.
A questionable search reveals drug trafficking
On January 8, 2019, Sergeant Ring (“Sgt Ring”) of the Winnipeg Police Service (“the WPS”) received information from an informant that the accused, a known member of a street gang, was staying in a hotel room and was using the room as a base to distribute drugs; the accused was also said to be using a black car. Surveillance of the hotel saw a person matching the accused’s description exiting a black Chrysler and entering the hotel. Inquiries at the hotel revealed that the accused was a registered guest at the hotel, and checking the license plate revealed that the Chrysler was registered to a family member with the same last name as the accused at an address that the accused had previously given as his residence.
The following evening, the Chrysler was no longer at the hotel. The accused was seen driving a BMW and was followed by police down a residential street. The BMW parked behind the Chrysler, which was parked on the residential street, and the accused walked to the passenger door of the Chrysler, remaining there for roughly a minute. Sgt Ring was aware of a growing trend that involved individuals stashing drugs in parked vehicles to avoid police detection and believed that the accused had committed a drug transaction. He ordered the accused to be arrested, but the team of officers assigned to make the arrest could not make it to the location on time.
The accused got back in the BMW and drove around the block; he stopped for a second time on the residential street, this time at the other end of the block from the Chrysler. He was then joined in the vehicle by another known gang member. Sgt. Ring again ordered that the accused be arrested, as he believed that the drug transaction was continuing. The police activated their lights and sirens and the accused fled in the BMW and later on foot. A search of the accused upon arrest resulted in a large sum of cash and the keys to the Chrysler. There were no drug related items in the BMW.
The police decided to search the Chrysler incident to arrest. The search resulted in the discovery of a kilogram of cocaine packaged into several bags. The accused conceded that there was reasonable suspicion to arrest him for drug trafficking but argued that the search of the Chrysler was not incident to his arrest.
Potential errors of fact and of mixed fact and law
The trial court in Ibrahim held that the search was incident to the arrest as removing himself from the scene by fleeing the police did not allow him to argue that the Chrysler was not in his immediate surroundings at the time of the search. In its reasoning, the trial court mistakenly stated that the BMW was parked right behind the Chrysler, when it was at the other end of the block at the time that the police activated their lights. The trial judge found that there was a reasonable prospect that drugs would be discovered in the Chrysler and that the search was not only conducted to discover evidence but also to preserve any evidence that might have been found in the vehicle and ensure the safety of the police and others.
On appeal, the following issues were considered:
whether the trial court erred in concluding that the Chrysler was in the immediate surroundings of the accused at the time of his arrest and, therefore, the law of search incidental to arrest would apply; and
whether the trial court erred in its application of the law of search incident to arrest.
A non-overriding mistake of fact
The MBCA in Ibrahim affirmed that there was a reasonable expectation of privacy associated with the Chrysler and therefore examined the issue of whether the search was lawful and reasonable pursuant to the common law authority of police to search incident to arrest. In Ibrahim, the accused argued that the location of the Chrysler, being a block from the BMW and even further from where he was finally arrested, failed to meet the requirement that the place searched was within the immediate surroundings of his arrest. The MBCA found that the spatial and temporal requirements of the search, including the concept of immediate surroundings, were informed by the legitimate police objectives of the search. The MBCA then moved to analyze whether the trial court materially misapprehended the evidence, leading it to conclude that the Chrysler was in the immediate surroundings of the accused at the time of his arrest and, as a result of that misapprehension, misapply the law to the evidence.
The MBCA rejected the argument that the place where the accused was eventually arrested after fleeing the police constituted his immediate surroundings and found that the entire crime scene encompassed the location of both vehicles and was within the immediate surroundings of the accused.
The MBCA in Ibrahim was clear that the findings of fact of a trial court may not be interfered with by an appellate court in the absence of a palpable and overriding error. The fact that the accused was at the Chrysler within minutes of his arrest and simply drove around the block before being joined by another suspected individual spoke to the continuous nature of the offence. The Chrysler was spatially and temporally connected to the offence and the accused, and the purpose of the search was to uncover evidence of a drug-related offence that could be reasonably believed that the accused was committing.
The error that the trial judge made regarding the exact location of the BMW was not an overriding error and it would have been found that the Chrysler was within the immediate surroundings regardless.
A non-overriding mistake of mixed fact and law
Regarding the question of whether the trial court erred in its application of the law to the facts, thereby committing an error of mixed fact and law, the MBCA considered two specific questions.
Firstly, the MBCA considered whether the trial court misapprehended identification evidence, thereby leading it to err in finding that the discovery of evidence was a valid objective of the search. The MBCA rejected the argument that being misidentified by the trial court as the driver of the Chrysler on the previous night affected its determination that the Chrysler was connected to the accused, thereby supporting its conclusion that the search to discover evidence was objectively reasonable. There was no palpable or overriding error in the trial judge identifying the accused as the driver, despite police admitting that it may not have been him, as the identity of that driver is of relative insignificance. The police observed the accused at the Chrysler just before his arrest, and he was in possession of the keys.
Secondly, the MBCA considered whether the trial court misapplied the law to the facts when it found the preservation of evidence to be a valid object of the search. The MBCA rejected the accused’s argument that the police had the ability to tow or guard the Chrysler and that therefore the preservation of evidence was not a valid objective of the search. As the search was valid for discovering evidence, there was no need to find a further objective; nonetheless, the MBCA conducted such an analysis. Regarding further objectives, the MBCA found it was possible that other gang members could have gained access to the Chrysler. The situation was a fluid one, involving at least three people, four vehicles, and an area of many blocks on a cold night. Since the search was incidental, there was no warrant required.
As a result of its finding that the trial court committed no overriding and palpable error of fact or of mixed fact and law, the MBCA dismissed the accused’s appeal.
Physical limits of search incident to arrest ought not be strictly construed
I agree with the trial court and MBCA’s decisions in Ibrahim. Section 8 of the Charter protects against unreasonable search and seizure, and this is a very important right as it guards against state intrusion, but the search in Ibrahim was clearly incident to arrest. In my opinion, this is not an instance that offends the reasonable expectation of privacy from state intrusion.
I also believe the MBCA was correct to reject the assertion that the only area that could be searched incident to arrest was the location where the accused was physically arrested. The suggestion that fleeing would change the area that police could search seems ludicrous. While the MBCA in Ibrahim did consider other cases that saw limits on the spatial and temporal components of the immediate surroundings, those limitations did not lend themselves to the fact scenario before the court. Allowing an accused’s fleeing of the scene of the crime to place these kinds of limitation on search incident to arrest would surely result in a significant increase in police chases across greater areas. As a result, I believe that the right conclusion was reached in this case.