Swabbing for powder residue after a shooting and lawful arrest is reasonable as an incident to arrest, Alberta’s top court has ruled.
In R. v. Nguyen, 2009 ABCA 38, police were dispatched at about 3 pm to a shooting at a shopping mall. Shots had reportedly been fired and two vehicles occupied by younger Asian males were said to be involved. One car was a newer black BMW with a license plate which matched the accused’s vehicle.
Officers conducted a high risk vehicle stop of Nguyen’s BMW about 20 minutes after getting the call. Nguyen was handcuffed, placed in a squad car, told he was under arrest for weapons offences, Chartered and cautioned.
His person, clothing, car and fingerless gloves found in the trunk were swabbed. Gunshot residue was found on Nguyen’s right hand, right side of his face, gloves, interior and exterior of the driver’s side door and driver’s seat.
Police testified at trial that they stopped and arrested Nguyen because there was a bullet hole in the rear window and his vehicle and plate matched witness descriptions. He was convicted of two firearms offences but appealed to the Alberta Court of Appeal, suggesting that police did not have reasonable grounds to believe the driver had committed an indictable (weapons) offence since they said they believed the BMW had also been shot at.
Nguyen contended that potential involvement in a crime – police belief that the car had been involved in a shooting – did not meet the required threshold of reasonable grounds to arrest the driver. The arrest was therefore unlawful, as was the search for gun residue as an incident to arrest, thus unreasonable under s.8 of the Charter. The court rejected his argument.
bq. In order to arrest without a warrant, a police officer must have reasonable and probable grounds to believe the suspect has committed an indictable offence.... The test has subjective and objective elements (and) police are not required to establish a prima facie case for conviction, the ruling noted.
bq. It is both subjectively and objectively reasonable and probable that the young Asian male driver of a vehicle with a bullet hole in the back windshield, which has a license plate and characteristics matching those of a vehicle involved in a shooting 20 minutes prior, committed a weapons offence.
bq. That the BMW was likely shot at does not in anyway diminish the probability that someone in the BMW was also a shooter, given the information available to the police. It must be remembered that eye-witnesses to the shooting indicated that the shooter associated with the BMW fired multiple shots at those associated with the Honda (para. 33).
Since Nguyen’s arrest was lawful the trial judge properly found that the search for gun residue was conducted as incident to arrest.