Search Incident to Arrest vs Obtaining a Warrant - Keenan Fonseca
The case of R v Ibrahim (“Ibrahim”) involves the police surveilling a possible drug operation that resulted in the accused fleeing in his vehicle. The main issue in this case involves the common law police power of search incident to arrest, and what the limits of the spatial and temporal requirements as they apply to this case. The constitutionality of the search is challenged under section 8 of the Canadian Charter of Rights and Freedoms. The following will review the case, as well as pose the question, why did the police not get a warrant for the search, regardless of the police power?
Ibrahim involved the Winnipeg Police Service (“the WPS”) operating a surveillance operation on the accused, as well as known associates of the accused, based off of source information. The WPS had determined through the hotel that the accused was driving a Chrysler 300 (“the 300”) that was registered to someone at the same address as himself, and it was also confirmed that Libanos, a known associate of the accused, was staying at the hotel as well and was driving a Jeep Cherokee. Based on this information, Sergeant Ring (“Sgt Ring”) instructed an officer to prepare search warrants for the hotel and continue surveillance.
Surveillance continued until the next day, where it was noticed that the 300 was not there and that instead a BMW registered under the same name, believed to be driven by the accused, had entered the parking lot. When followed, the BMW stopped on a residential street behind the 300; the accused was seen moving in the direction of the car, but no further details were witnessed. Sgt Ring ordered that the accused be arrested at this time. However, the team failed to arrive in time and the accused drove the BMW to the other end of the street, stopping beside a Nissan driven by another associate, Frangi, who then entered the BMW.
Sgt. Ring activated his lights in an attempt to stop the BMW, which proceeded to flee from the police. Eventually, the accused was caught and $995 was found, in addition to the 300 keys in the BMW upon a search incident to his arrest. With the accused and his associates, Libanos and Frangi, in custody, the officers returned to the 300 and decided to search the vehicle incident to arrest. This search resulted in the discovery of approximately 1 kilogram of cocaine, packed into several baggies in the glovebox of the 300.
The trial judge determined that, although the search of the 300 was prima facie a search and seizure and thus a potential section 8 violation of the accused, the Crown had demonstrated that it was authorized by law under the search incident to arrest, using the framework outlined in R v Collins (“Collins”). On the issues of temporality and spatiality as they related to the search, it was determined that the accused could not rely on the fact that he removed himself from the scene by fleeing and that there was a reasonable prospect that the drugs would be discovered in the 300.
Search Incident to Arrest
The issue in Ibrahim was whether the search was lawful and reasonable pursuant to the common law authority of police to search incident to arrest.
A brief review of the common law power of search incident to arrest will be undertaken. It was stated in Cloutier v Langois (“Cloutier”) that “the power to search an arrested person extends to encompass a search of the surroundings of the arrest locations, and that the process of arrest must ensure that the evidence found on the accused and in his immediate surroundings is persevered.” It was further stated in Cloutier that this power is not unlimited and that “the search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused”.
Building off of the jurisprudence in Cloutier, the case of R v Caslake (“Caslake”) stressed that the search must be truly incidental to the arrest; the police do not need reasonable and probable grounds, but they must have an explanation in regard to the purposes articulated in Cloutier. Caslake also stated that delay and distance do not automatically preclude a search from being incident to arrest, although any negative inference drawn by the court may be rebutted by a proper explanation.
Further to build on this power, in the case of R v Fearon it was stated that to determine the precise scope of the common law power the court must weigh the competing interests involved, particularly whether the search is reasonable in light of the public purposes served by effective control of criminal acts against the respect for the liberty and fundamental dignity of individuals. R v Saeed set out the general framework for a valid search incident to arrest, which requires only that:
the individual searched has been lawfully arrested;
the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose related to the reasons for the arrest; and
the search is conducted reasonably.
The accused relied on the case of R v Frieburg, which involved the search of an accused’s second vehicle that was parked outside of her residence. In that case, the accused had been arrested in her first vehicle, a mile away. It was determined that this search was not incidental to her arrest, and that the vehicle was not in the immediate surroundings. Another case relied upon by the accused was R v Ellis (“Ellis”), a case out of Ontario that involved a search of a vehicle incident to arrest that was determined to be unconstitutional as there was no risk that the accused would be able to gain access or destroy any of the evidence in the vehicle as he was in police custody.
The appeal court in Ibrahim distinguished Ellis as the latter involved a charge of dangerous driving and the discoverability of evidence in Ellis compared to possession for the purpose of trafficking under section 5(2) of the Controlled Drugs and Substances Act was more serious.
Regarding the validity of the objective of the preservation of evidence, the accused in Ibrahim argued that the WPS should have obtained a warrant for the search of the 300, as the accused were in custody, and the police had the car under surveillance. The appellate court supported the trial judge’s reasoning that, although the three suspects were in custody at the time of the search, the police did not know if anyone else could gain access to or move the 300. It was concluded that the search was incidental to arrest, a warrant was not required, and the search was within the spatial and temporal requirements.
The police’s choice not to obtain a warrant
Before a discussion of the question posed in the introduction, Ibrahim sets an important precedent, that attempting to evade/escape the police from the scene of a crime does not amount to defeating the requirement that a search be spatially and temporally connected to the arrest.
Returning to the question of why the police chose not to get a warrant for the search, regardless of the police power: on the facts of Ibrahim, it appears that the police had more than enough evidence to obtain search warrants for the accused and associate’s hotel rooms. This was prior to them viewing the suspicious activity of the BMW and 300. After viewing this activity, they had reasonable grounds to believe that there was evidence of trafficking involved. This information, combined with the fact of having the three suspects in custody, appears to be a perfect situation to obtain a warrant. To clarify, it was determined that a warrant was not needed and is not needed regardless of whether one is available; a prima facie lawful search should always be favoured by the police. A warrant would have allowed for the discoverability of the evidence, as well as a lawful search to deter a Charter challenge on the part of the accused, as well as a notion that the police will utilize the prima facie lawful searches when available.
The preservation of evidence was stressed as the main reason for the use of the common law police power. However, it could be argued that the belief that this evidence was in the 300 fell below reasonable and probable grounds, although again this is not a requirement of the search incident to arrest power. All the police had was informant information, their suspicion, and $995 dollars in cash, which on its face does not look too convincing to presume there was important evidence in the 300.
Current state of search and seizure out of line with original intent
The trend of searching now and justifying the constitutionality of the search later appears to be a common trend in cases involving section 8 of the Charter and in those involving search and seizure in general. This trend appears to contradict what Justice Dickson hoped for in his ruling in Hunter v Southam, where it was said that “[s]ection 8’s purpose is to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place.”
Specific to Ibrahim, where it was opined that the police should have obtained a warrant, Justice Dickson said, “Where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure.” With this in mind, there is a hope that Canada can return to the view that privacy is a critical right, and that prima facie lawful searches should be preferred.