Search reasonable to ensure officer safety

Mike Novakowski
December 31, 2009
By Mike Novakowski
Opening a candy container during a search was reasonable because police believed it might contain a weapon, Alberta’s highest court has ruled. In R. v. Abdo, 2009 ABCA 340, two police officers stopped a car at about 2:45 am because it was swerving and speeding and they believed the driver may be impaired. When they looked in the car, they saw a sword resting on the floor, with the handle tucked between the console and the front passenger seat, within arm’s reach of Abdo. He was ordered out, arrested for possession of a weapon and asked to place his hands on the car for a pat down search because of a concern for officer safety.

Opening a candy container during a search was reasonable because police believed it might contain a weapon, Alberta’s highest court has ruled.

In R. v. Abdo, 2009 ABCA 340, two police officers stopped a car at about 2:45 am because it was swerving and speeding and they believed the driver may be impaired. When they looked in the car, they saw a sword resting on the floor, with the handle tucked between the console and the front passenger seat, within arm’s reach of Abdo. He was ordered out, arrested for possession of a weapon and asked to place his hands on the car for a pat down search because of a concern for officer safety.

Abdo did not comply and appeared to be trying to hide something. The searching officer thought he may have a weapon, felt a hard object in his genital area and removed a Skittles container from his pants. Suspecting it may contain a weapon, the officer opened it and discovered 17 pieces of cocaine. Abdo was arrested for possession of a controlled substance.

At trial in the Alberta Court of Queen’s Bench Abdo argued his Charter rights under s.8 and 9 had been breached. The trial judge held that the initial detention was lawful because the officers had reasonable cause to suspect that Abdo was impaired. She found that reasonable grounds for arrest for the weapons offence were established on both a subjective and objective basis because Abdo was driving at 2:45 am with swords within arm’s reach.

There was also a valid purpose for the pat down search incidental to arrest because Abdo had been arrested for a weapons offence and there was a reasonable concern for officer safety. She found that the officers had a subjective belief that the hard object might be a weapon and, once retrieved, that the Skittles container might hold drugs, drug paraphernalia or a weapon and there was an objective basis for those beliefs. Therefore, there were no Charter breaches and Abdo was convicted of possessing cocaine for the purpose of trafficking and possessing a weapon for a dangerous purpose. Abdo appealed to the Alberta Court of Appeal.

Justice Costigan, delivering the judgment for court, first noted that the standards of review for issues relating to reasonable and probable grounds are well settled:

  • A trial judge’s factual findings are entitled to deference; and

  • The application of a legal standard to the facts is a question of law reviewable on the correctness standard.

The court wasn’t satisfied that the trial judge had erred:

The trial judge correctly articulated the relevant legal tests and the facts she found were sufficient, at law, to support her conclusion that those tests were met. The evidence supports the trial judge’s conclusion that the officers had reasonable and probable grounds to arrest the (accused) for possession of a weapon for a dangerous purpose after they detained him in the early morning hours and observed the location of the swords.

The fact that there might be innocent reasons why the (accused) had the swords in the car could have an impact on whether a reasonable doubt exists but it does not detract from the reasonable and probable grounds of the police officers at the scene.

The evidence also supports the trial judge’s conclusion that the search of the (accused’s) person was reasonable given the arrest for a weapons offence and the concern for officer safety. Moreover, the evidence supports her conclusion that it was reasonable to extend the search to the contents of the Skittles container given the officers’ belief that it might enclose a weapon (paras. 7-8).

Abdo’s appeal was dismissed.

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