Arrest Grounds Depend On All The Circumstances

Mike Novakowski
January 11, 2016
By Mike Novakowski
In a two to one decision, Newfoundland's top court has upheld the arrest of a driver after a police officer saw a knife positioned nearby. In R. v. Diamond, 2015 NLCA 60 a police officer stopped a pick-up truck at 12:55 am on a remote road for travelling 80 km/h in a 50 zone. He radioed in the licence number and was advised to be cautious because the registered owner had earlier been arrested for drugs and had a scanner and knife. The officer saw a police scanner above the driver-side window visor as he approached the vehicle and noted the truck was higher than usual because it had large tires and a suspension lift. When asked for his driver's license and registration, Diamond checked his window visor but could not find it. The officer asked him to check the glove box and the officer saw some money he had been sitting on when he leaned over. The officer, with at least part of his head and hand through the open window, shone his flashlight on "an unsheathed hunting type knife within Diamond's reach next to the driver-side door. Diamond was arrested for possessing a weapon dangerous to the public peace and was placed in handcuffs and patted-down at the roadside. A small bag of cocaine fell from his clothing.

In a two to one decision, Newfoundland's top court has upheld the arrest of a driver after a police officer saw a knife positioned nearby.

In R. v. Diamond, 2015 NLCA 60 a police officer stopped a pick-up truck at 12:55 am on a remote road for travelling 80 km/h in a 50 zone. He radioed in the licence number and was advised to be cautious because the registered owner had earlier been arrested for drugs and had a scanner and knife.

The officer saw a police scanner above the driver-side window visor as he approached the vehicle and noted the truck was higher than usual because it had large tires and a suspension lift. When asked for his driver's license and registration, Diamond checked his window visor but could not find it. The officer asked him to check the glove box and the officer saw some money he had been sitting on when he leaned over.

The officer, with at least part of his head and hand through the open window, shone his flashlight on "an unsheathed hunting type knife within Diamond's reach next to the driver-side door. Diamond was arrested for possessing a weapon dangerous to the public peace and was placed in handcuffs and patted-down at the roadside. A small bag of cocaine fell from his clothing.

Diamond was advised of his right to counsel, which he declined, and given the standard police caution. Another 28 small bags totaling 12 grams of cocaine was discovered during a subsequent strip-search at the police station. Diamond was charged with possessing cocaine for the purpose of trafficking and possessing a weapon dangerous to the public peace.

In Newfoundland and Labrador Provincial Court, Diamond argued that his rights under ss. 8 and 9 of the Charter were breached. In his view, the act of the officer leaning his head in the truck and shining his flashlight constituted a warrantless search without sufficient grounds to do so. He submitted the officer's conduct was "quite egregious" and a "ruse" but the judge disagreed.

The initial stop was not a ruse to justify a drug or weapon search, the judge found. Diamond was driving 30 km/h over the speed limit. Dispatch told him to exercise caution. As an officer working alone in the dark and told to be cautious, he needed to take a reasonably thorough view of the vehicle.

"Police work is a dangerous job, particularly when one is unaccompanied in the dead of night," said the judge. "Vehicles are capable of transporting weapons, armaments and contraband."

Although Diamond had an expectation of privacy while operating his vehicle, it was a reduced one, and the officer's inspection of the truck cab did not amount to a search.

Where speed is a factor, the officer must be attentive to the possibility of impairment by alcohol or drugs. Where one is alerted to the possibility of the presence of a knife, one might also be expected to rotate one's flashlight around to check the environment. This was not an open convertible or sports car which the officer could survey from above.

In order to view the vehicle in a proper manner to address the concern of impairment or personal safety around the possible presence of a weapon, the skills of a gymnast were not needed. Nonetheless, the height of the vehicle required the head of the officer and the flashlight to minimally enter the open window area and the knife was seen immediately.

The knife was in plain view and seeing it was inadvertent. "The officer did not expect to find a knife," said the judge.

"All the officer did was a routine scan of the vehicle with his flashlight as he had to do in that place and that circumstance and the physical dimensions of the vehicle required a minimal insertion of head, hand and flashlight far enough through the open window to allow a view of this large knife, unsheathed and available for ready use in the lower door compartment on the driver's side of the truck."

The judge found the officer had the necessary reasonable grounds to justify an arrest under s. 495(1) of the Criminal Code for possessing a weapon for a purpose dangerous to the public peace. The searches that uncovered the cocaine were therefore reasonable. Diamond was convicted of both charges.

Diamond challenged his convictions before the Newfoundland and Labrador Court of Appeal, contending that the trial judge erred in finding that the officer's inspection of the truck's cab was not a search. He argued that the officer did more than a simple visual inspection. Rather, he performed a search when he physically placed part of his head and hand while holding a flashlight inside the trucks' interior.

He also submitted that the discovery of the knife alone was insufficient to justify the arrest. Therefore, the pat-down and strip searches which revealed the cocaine were unreasonable. In his opinion, all of the evidence should have been excluded under s. 24(2) of the Charter.

{A search?}

Justice Harington, speaking for the majority, noted that there was "a significant amount of jurisprudence affirming that a police officer may use a flashlight at night to observe activities or objects inside vehicles." He then concluded that the officer's visual inspection of the cab's interior in this case did not amount to a search.

The judge found that the officer minimally inserted his head and a hand holding a flashlight inside the vehicle only briefly, to assess his immediate surroundings for his own safety. This minimal intrusion was necessary due to the height of the truck. I agree with his finding that this did not constitute a search [para. 18].

As well, the plain view doctrine applied. The officer was in a lawful position from which to view the unsheathed knife in the course of a lawful visual inspection of the truck.

{A lawful arrest?}

The majority of the appeal court also agreed that the accused's arrest was lawful. The officer had the required subjective belief (as conceded by the accused) that was objectively reasonable in the circumstances. The totality of the circumstances not only included the presence of the knife but also the following:

(i) The knife was located on the driver's side, where it would be most easily accessible;

(ii) It was unsheathed. If the knife was related to illegal drug activity, it would be advantageous to have it unsheathed for quicker access;

(iii) Involvement in the drug trade can be a motive to carry a weapon for a purpose dangerous to the public;

(iv) The officer knew the [accused] had previously been arrested for possession of drugs;

(v) The [accused] was carrying a machete type knife when he was last arrested for possession of drugs;

(vi) The [accused's] vehicle was carrying a police scanner. That is a known drug-trafficking accessory; and

(vii) The [accused] was carrying a police scanner the last time he was arrested for possession of drugs [para. 25].

The majority did offer this caution:

I am not suggesting that, in every instance when an unsheathed knife is located in a door pocket beside the driver of a vehicle, this would be the basis for arresting the driver for possession of a weapon dangerous to the public peace. It is the confluence of circumstances that supports the arrest for that offence in this case.

The officer had been warned to proceed with caution since the owner of the vehicle had previously been charged with drug offences and, at the time, he had had a knife. The officer was alone on a rural road at 12:55 a.m. The officer saw that the [accused] had been sitting on an amount of money which was visible when he leaned over to open the glove box.

In the circumstances, he reasonably suspected the involvement of drugs which alerted him to the possibility that the knife was intended for a use dangerous to the public peace, including to himself [para. 21].

Since the arrest was lawful, the seizure of the cocaine was justifiable incidental to the accused's arrest. The accused's appeal was dismissed.

{A second opinion}

Justice White, in a dissenting judgment, concluded that the police officer's action, in placing his head and hand into the interior of the accused's vehicle and scanning it with a flashlight, amounted to a search:

A police officer is either outside the vehicle conducting a visual inspection, whether aided by a flashlight or not, or inside the vehicle to such extent that he can see items it would be impossible to see from outside and the public's access to which the owner of the vehicle has sought to restrict.

The degree of intrusion in the case at bar is no different in principle to the officer opening the door and sitting on the car seat. There is either an intrusion into the vehicle or there is not. Here there was, resulting in a warrantless search [para. 34].

This warrantless search, however, was justified on the basis of officer safety.

While the stated concerns for officer safety were rather vague and perhaps a different conclusion was available, considering all of the circumstances and the law... I cannot say that the trial judge made a palpable and overriding error in finding that officer safety was a concern...

There was no 'unreasonable' search and, therefore, no violation of the [accused's] section 8 rights for this reason alone.

However White, unlike the majority, found the arrest to be unlawful because the officer did not objectively have reasonable grounds:

My colleague references a number of loosely connected facts, each of which is perhaps individually suspicious and somewhat indicative of the [accused] being on occasion involved in unsavoury activities. However, the question on this appeal is whether, taken together, all of these facts could have reasonably and probably indicated to the officer that the [accused] had committed, was about to commit or was committing the offence of possessing a weapon for purposes dangerous to the public peace or for committing an offence contrary to section 88(1) of the Criminal Code. In my view they do not.

Simply put, the officer's mere general knowledge that the [accused] had been previously arrested for drug offences and during that arrest was in possession of a knife, does not give the officer reasonable and probable grounds to arrest the [accused] for possessing a weapon for a purpose dangerous to the public peace on any subsequent occasion when the officer sees the [accused] with a knife. Otherwise a person in the position of the [accused] would always thereafter be at risk of arrest if he ever carried a knife again, even though possessing such a knife is not per se unlawful. This is especially so when there is no evidence the knife was used to commit any offence or used for dangerous purposes on either occasion.

A knife is not a prohibited or restricted weapon such as a gun. Unlike a gun, a knife is inherently a tool, not a weapon. The fact of possessing a knife is not, without more, a criminal offence. While knives may be considered weapons within the meaning of section 2 of the Criminal Code with possession in some circumstances regulated by section 88(1), there is not a scintilla of evidence in this case that the [accused] had previously used the knife dangerously, that he was attempting to use the knife dangerously, that he was committing any offence with the knife or that he had any purpose dangerous to the public peace.

Even though it was nighttime, the [accused] was driving alone in his vehicle, without exposing any other persons to the knife and he cooperated fully with the officer. I cannot conclude that a reasonable person would say that the officer had anything close to reasonable and probable grounds for arresting the [accused] for possession of this knife> [paras. 46-47] .

Since the arrest was unlawful, it breached s. 9 of the Charter and the searches incident to it were unreasonable and breached s. 8. White would have excluded all of the evidence under s. 24(2) and entered acquittals on the charges.

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