Search for breach evidence incident to arrest

Mike Novakowski
March 11, 2013
By Mike Novakowski
It is valid to search a vehicle incident to an occupant's arrest for further breaches of a bail order, Manitoba's highest court has ruled. In R. v. Sesay, 2013 MBCA 8 a police officer saw an SUV run through a stop sign and pulled it over in a parking lot to ticket the driver. The officer asked for identification and registration and a computer check revealed Sesay was flagged as a "known gang member," "armed and dangerous," a "suspected drug dealer" and had been known to be "violent or assaultive." The officer called for back-up and two cars with four officers arrived and parked so as to effectively box in the SUV. Sesay was given back his documents and a ticket and officers asked his passenger to identify himself. He provided identification and a computer check showed he was currently on bail for drug trafficking with conditions, including a requirement to produce a copy of his undertaking upon police request and not possess drugs or electronic communication devices. The passenger, when asked, was unable to produce a copy of his undertaking. He was asked to step from the vehicle, arrested, searched and read his rights, then handcuffed and seated on the curb.

It is valid to search a vehicle incident to an occupant's arrest for further breaches of a bail order, Manitoba's highest court has ruled.

In R. v. Sesay, 2013 MBCA 8 a police officer saw an SUV run through a stop sign and pulled it over in a parking lot to ticket the driver. The officer asked for identification and registration and a computer check revealed Sesay was flagged as a "known gang member," "armed and dangerous," a "suspected drug dealer" and had been known to be "violent or assaultive."

The officer called for back-up and two cars with four officers arrived and parked so as to effectively box in the SUV. Sesay was given back his documents and a ticket and officers asked his passenger to identify himself. He provided identification and a computer check showed he was currently on bail for drug trafficking with conditions, including a requirement to produce a copy of his undertaking upon police request and not possess drugs or electronic communication devices. The passenger, when asked, was unable to produce a copy of his undertaking. He was asked to step from the vehicle, arrested, searched and read his rights, then handcuffed and seated on the curb.

Sesay, now speaking to his lawyer by phone, got out of the SUV, locked the doors and refused to provide the keys so police could search it. Officers wanted to look for weapons, cell phones or other items prohibited by the undertaking as an incident to the passenger's arrest. Sesay eventually relented.

Two cell phones were found: one on the inside of the passenger door and another in the central console between the passenger and driver's seat. Police also found a gum container on the slider rail of the seat nearest the passenger door with 24 individually foil-wrapped packages of crack cocaine. Sesay was arrested, given his rights, cautioned and handcuffed. A search turned up $320 cash in his right front pocket and he was charged with possessing cocaine for the purpose of trafficking and possessing proceeds of crime under $5,000.

At trial a Manitoba Court of Queen's Bench judge concluded Sesay wasn't unlawfully detained, finding the traffic stop lawful and Sesay merely delayed because of his passenger's arrest. Furthermore, the officer's stated reasons for searching the vehicle, including a concern for his safety, were reasonable in the circumstances.

The search was reasonably conducted and lawful as an incident to the passenger's arrest. Sesay's arrest, she held, did not occur until the gum container and its contents were discovered. His arrest was therefore lawful.

I am satisfied both subjectively and objectively that (the officer) had reasonable grounds to detain and arrest (the accused) when he did, in light of the drugs that were found in the car and all the other information he had, and his detention wasn't arbitrary, said the judge.

His reasons for doing so were clearly articulated and can easily be inferred from all of the circumstances in full conformity with the law."

She admitted the evidence and convicted the accused on both charges. He was sentenced to three and a half years in prison, less six months time served, but consecutive to a two year sentence he was serving for another drug offence.

The accused appealed to Manitoba's top court arguing, among other grounds, that the search incidental to the arrest of his passenger was unlawful and unreasonable in its scope. In his view, the search to protect and discover evidence related to the breach of undertaking was unnecessary. The passenger had told the officer he did not have his undertaking with him, which provided all the necessary evidence for laying a breach of undertaking charge.

He further suggested safety wasn't an issue since the scene was secure, he was out of the vehicle and his access to it could be restricted. Moreover, the passenger was under arrest, removed from the vehicle, placed on the curb and searched.

Search incident to arrest

Justice Monnin, delivering the Manitoba Court of Appeal's opinion, cited a useful summary from the BC Court of Appeal (R. v. Majedi, 2009 BCCA 276) on the principles governing search incident to arrest:

  • 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.

Monin found the vehicle search was justified as an incident to arrest for safety and evidence reasons, both legitimate purposes for exercising this search power. Although officer safety may not have been the primary reason for the vehicle search after the passenger's arrest, he said it was a relevant factor.

The fact that he was operating under the premise that he had been warned that the accused was a gang member, armed and dangerous and known for violent and aggressive behaviour, are all factors which would support, in an objective fashion, a decision to embark on a further search of the vehicle to look for prohibited weapons and ensure his security as well as that of the other officers...

That it wasn't a primary factor does not take away that it was one aspect of his reasons for performing the search.

As for evidence gathering, the passenger was arrested for breach of undertaking. Since he did not have his undertaking with him it was open to the officer "to seek further evidence of a breach of the same undertaking." It wasn't outside the scope of searching incidental to arrest for a breach of one of the undertakings condition to search the vehicle for evidence of breaches of other conditions arising from the same undertaking.

The search incidental to arrest was made for valid reasons and was performed reasonably. It was therefore lawful and Sesay's appeal was dismissed.

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