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Consider reasonable suspicion factors collectively


April 7, 2014
By Mike Novakowski

Although some factors may appear neutral, when looked at collectively they can provide sufficient grounds to nourish a reasonable suspicion.

In <R. v. Wunderlich, 2014 ABCA 94> a police officer stopped the accused because his vehicle had crossed over the fog line onto the shoulder of a highway. It also did not have mud flaps. As the officer approached along the passenger side, he noticed a large dog that prevented him from engaging the driver, Wunderlich. He saw a mattress in the rear box as he circled around the back to approach the driver’s side.

The officer made a number of other observations that raised his suspicions as he spoke to Wunderlich: (1) the vehicle had a “very lived-in look;” (2) the presence of a mattress and Jerry can indicated that the driver did not want to leave the vehicle unattended; (3) there were numerous air fresheners hanging from the rear-view mirror, several emitting odor; (4) the large dog; (5) Wunderlich said he was travelling from Vancouver to Regina, but the highway travelled was not the most direct route for his supposed travel plans; (6) Wunderlich claimed that he planned to go hunting but the officer knew the hunting season was not open for non-residents; and (7) Wunderlich appeared to be overly nervous for a traffic stop, his carotid artery was pulsating and he became increasingly nervous as the stop continued.

A computer check revealed police had queried Wunderlich two days earlier in Vancouver, however he told the officer that he left Vancouver four days earlier, stayed overnight with his sister in Kelowna and the following night in Edmonton.

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The officer returned to the vehicle and noted Wunderlich’s nervousness had not subsided and his face was now flushed. Wunderlich then changed his story about his travel plans, indicating that he was going to Saskatoon, rather than Regina. This story would be more consistent with the vehicle travelling on the highway it was on. At this point the officer formed the suspicion that Wunderlich was involved in drug related activity, detained him and called for a police service dog to sniff around the vehicle exterior.

The dog indicated the presence of narcotics. Wunderlich was arrested for possessing a controlled substance. A manual search turned up 9.5 lbs of marijuana.

Wunderlich argued in Alberta Provincial Court that his rights under <ss. 8> (unreasonable search) and <9> (arbitrary detention) of the Charter had been violated. However, the judge was satisfied that the officer had a reasonable suspicion – more than a hunch – that Wunderlich was involved in a drug-related offence before being detained for that purpose and the dog being deployed to sniff the vehicle.

The judge recognized that individual pieces of evidence may be neutral when viewed in isolation (eg. messy or “lived in” appearance, air fresheners, travelling with a dog), but the correct test is to look at the evidence as a whole. He also recognized the officer’s experience and training in drug investigations. There were no Charter breaches, the evidence was admitted and Wunderlich was convicted of possessing marijuana for the purpose of trafficking.

Wunderlich challenged his conviction before Alberta’s top court arguing, in part, that the trial judge failed to properly consider the evidence when concluding there were no <ss. 8 or 9> breaches. The Court of Appeal disagreed.

{Majority}

Justices Watson and Rowbotham found the trial judge recognized the neutrality of several of the factors cited as evidence to support a reasonable suspicion. However, in their view, there were also several important non-neutral factors, including the change in Wunderlich’s itinerary to explain why he was on the highway and the version of his travel plans being inconsistent with the vehicle query in Vancouver.

The majority ruled that the trial judge adequately considered the officer’s testimony and explained that, “while some of the individual indicators may have been neutral, collectively, in context, and with the officer’s training and experience, the factors raised a reasonable suspicion that the [accused] was involved in drug related activity.”

{A second opinion}

Justice Berger, concurring in the result, gave his own reasons. In his view, even without conversation between the officer and Wunderlich, “the ‘drug investigation profile indicators’ observed by the investigating constable are sufficient… to establish the mere ‘possibility’ of criminality to warrant the subsequent search.” These included:

  1. The presence of a mattress and Jerry can in the vehicle box “at the time of the year when it can be very cold in this part of the world, if one was planning to sleep there.” This was said to be consistent with a drug courier who would be unwilling to leave his vehicle.
  2. The numerous air fresheners.
  3. The lived-in look of the vehicle, including the multiple fast food containers throughout.
  4. The accused’s nervousness, which “intensified” as evidenced by his pulsating carotid artery.
  5. The discovery that the accused’s licence had been queried two days earlier in Vancouver.
  6. The accused being flushed when the constable returned to the vehicle and before the impugned conversation took place.

Wunderlich’s appeal was dismissed.