Ontario's highest court has upheld the search of an abandoned vehicle and discovery of a hidden handgun on the basis of conducting an inventory.
In R. v. Ellis, 2016 ONCA 598 a police officer spotted an Acura and VW apparently street racing at about 12:28 AM, going some 30-40 km/h over the speed limit. He followed and chose to pursue the Acura into a residential area. It turned down a dead-end street and was found parked in a driveway between two houses.
The officer saw a man in an oversized white t-shirt walking away from the car toward the back of the houses as he pulled up.
A licence plate check revealed that the Acura was registered to a 68-year-old woman who did not live on the street. While waiting for backup, the officer saw two men. One walking in the distance wore an oversized white t-shirt and looked back in the officer's direction.
Backup officers stopped the men for identification and to ask about their activity in the area. Ellis, the man in the white t-shirt, was advised he was being investigatively detained but not told of his right to counsel.
Ellis said he was walking to the area from his home nearby, looking for a party. His driver's licence listed the same address as that of the registered Acura owner. Ellis volunteered that he had an outstanding warrant for his arrest. A computer check revealed Ellis had a previous firearms conviction, was a gang member and potentially "armed and dangerous."
Officers patted him down and asked him to empty his pockets. He had two cell phones, cash and keys, which were immediately returned to him. The keys belonged to an Acura. The vehicle was to be impounded under Ontario's Highway Traffic Act (HTA) as abandoned and Ellis was arrested for careless driving, an HTA offence and the outstanding warrants.
The keys found on Ellis were used to search the Acura and police discovered a fully loaded .25 calibre handgun hidden behind a console panel. He was arrested for illegal possession of a firearm, advised of his right to counsel and charged with several weapons offences.
A Ontario Superior Court of Justice judge found police had "articulable cause" or a "reasonable grounds" to suspect Ellis was involved in the provincial offence of careless driving, so the investigative detention was valid. The cars were seen speeding and the officer suspected the man in the oversized white t-shirt was the driver.
The pat down search for officer safety was reasonable. Ellis was affiliated with a gang, potentially "armed and dangerous" and had a previous firearm conviction.
Going into the pockets was also reasonable given that there were hard or sharp objects (a cell phone and car keys) within. The search was executed reasonably and the items were immediately returned to Ellis, suggesting it was not merely a pretext to discover keys but actually for the purpose of officer safety.
The arrest too was lawful. The address on Ellis' licence matched the ownership of the Acura. This tied him to the offence of careless driving and was sufficient to form reasonable and probable grounds for his arrest.
The outstanding warrants revealed by the CPIC check also provided grounds for arrest. The judge found police were entitled to seize the Acura keys from Ellis pursuant to their powers of search incident to his subsequent arrest. As for the search of the car itself, it could not be justified as a search incidental to arrest.
The Acura was not within Ellis' immediate surroundings or under his immediate control, there was no risk he could gain access to it to obtain weapons or to destroy evidence and it was unlikely police might find evidence in relation to the arrest or the offences listed in the outstanding warrants. However, the judge concluded the search was authorized as an inventory search under s. 221(1) of the HTA.
The vehicle was "apparently abandoned" and police were lawfully entitled to perform an inventory search. The evidence, nevertheless, was subject to a s. 24(2) Charter analysis since officers failed to provide a reason for the detention and advise the accused of his right to counsel under s. 10 of the Charter.
The gun was admitted as evidence and Ellis was convicted of unauthorized possession of a firearm, being an occupant in a motor vehicle in which he knew there was an unauthorized firearm and ammunition, unauthorized possession of a loaded prohibited firearm and possession of a firearm contrary to an order. He was sentenced to seven years in prison less time served.
Ellis appealed his convictions to the Ontario Court of Appeal arguing that the pocket search, seizure of the car keys, search of his car and seizure of the gun breached s. 8 of the Charter. In his view, the evidence of the gun ought to have been excluded under s. 24(2).
Pocket search & key seizure
The appeal court found police did not breach the accused's Charter rights when they searched his pockets and seized the keys. First, the accused's detention was lawful.
A police officer may detain an individual for investigative purposes where there are reasonable grounds to suspect in the circumstances that the person is connected to a particular recent or ongoing crime and detention is required [para. 25].
As for the frisk search, police may conduct a protective pat down search of an individual detained for investigation where officers have reasonable grounds to believe their safety or that of others is at risk. Police had information the accused was a gang member, potentially armed and dangerous and was previously convicted for a firearms offence.
The search incident to an investigative detention can also extend to a search of the contents of pockets. This case was not like R. v. Mann, 2004 SCC 52, where the Supreme Court held going beyond the pat down to search the accused's pockets after feeling a soft object was unreasonable. Instead, this pat down search revealed a safety concern.
During the pat down search, the officer felt hard objects in the [accused's] pockets that could have been weapons. This was not a case like Mann where the pat down did not give rise to any articulable safety concern. The officer had a reasonable belief that the [accused] might be armed. In these circumstances, it is not the function of this court, many years after the incident and with knowledge of what was actually in the pockets, to criticize the officer for searching the pockets to ensure that the hard objects were not weapons.
A police officer in such circumstances is in a dynamic and potentially life-threatening situation and he or she must be able to undertake a protective search in a reasonable manner to preserve his or her safety [para. 30].
Seizing the car keys was lawful as an incident to arrest even though it preceded Ellis' formal arrest.
"The fact that the search was conducted minutes before the arrest makes no difference," said Justice Hourigan. "A search that precedes an arrest is valid as incident to that arrest where, prior to the search, there existed reasonable and probable grounds for the arrest."
Police had reasonable and probable grounds to arrest Ellis for careless driving at the time of the key seizure.
The Crown argued that searching the Acura was both valid as a search incident to arrest and as an inventory search of an abandoned vehicle impounded under s. 221(1) of the HTA. The appeal court agreed with the trial judge that the car search could not be justified as an incidental to arrest.
The car was about 50 metres from where Ellis was arrested. He was in custody and handcuffed and thus unable to secure a weapon from or destroy evidence inside the vehicle. The search would not yield any evidence in connection with the offence of careless driving. Police knew that Ellis and the Acura owner lived at the same address, so it was unlikely to be stolen, and it was not necessary to seize any ownership or registration documents.
The inventory of the vehicle, however, did justify the search. Under s. 221(1) of the HTA "a police officer... who discovers a vehicle apparently abandoned on or near a highway... may take the vehicle into the custody of the law and may cause it to be taken to and stored in a suitable place."
This statutory authority provided a lawful basis for the search. First, the Acura was "apparently abandoned." Ellis was fleeing police, parked his vehicle with the intention of distancing himself from it and left it on a private driveway where he knew it could not legally remain.
Second, police have a responsibility to keep impounded property safe, which may require they search and inventory the vehicle. Officers testified the inventory search was necessary to see if there were any valuables in the car, as authorized by law under s. 221(a) of the HTA. The search was not unreasonable and did not breach s. 8.
Even though police breached the accused's <s. 10> rights by not advising him of his right to counsel and failing to state the reason for his detention, the evidence was not to be excluded under s. 24(2). The appeal court found the trial judge considered the proper factors in his analysis and the gun was admissible.
The accused's conviction appeal was dismissed.