Safety searches: never say always
A Saskatchewan judge has thrown out a two-foot-long machete as evidence because a police officer failed to articulate the need for a safety search.
In R. v. Peekeekoot, 2017 SKQB 27, police officers responded to the dispatch of a robbery just before midnight. The victim was robbed at knife point and a cellphone was taken. The suspects were described as three na- tive males shorter than six feet two inches. One was reportedly wearing all white, one was wearing all black, and one was wearing a white sweater with green stripes. Within a few minutes of receiving the dispatch, the officers came upon a group of four native males approximately three blocks from where the robbery was reported. One male was wearing white track pants with a black shirt. As the officers approached these males to determine if they had been involved in the robbery, Peekeekoot left the group. An officer caught up to him, grabbed hold of his arm, placed him in handcuffs and searched him for weapons. The officer found a two-foot-long machete, in a sheath, inside Peekeekoot’s pants. Peekeekoot was arrested for carrying a concealed weapon, but later ruled out as a suspect in the robbery.
At trial in the Saskatchewan Court of Queen’s Bench on a charge of carrying a concealed weapon, the arresting officer testified he had a reasonable suspicion that these individuals may have been involved in the robbery, but not enough to arrest them. He said he placed Peekeekoot in handcuffs for safety. He also described the reason for the search as one to protect officer safety; he was searching for weapons, knives or needles. He testified that he searches anyone he is going to place in a police vehicle or, anyone put in handcuffs, on the basis of officer safety.
The judge found that Peekeekoot was detained when his liberty was physically restrained. This investigative detention, however, was not arbitrary. “A review of the complete constellation of facts does not require there be absolute identity between the information the police have and those they detain to complete their investigation,” said the judge. “While there must be sufficient comparison to allow the officers to have a reasonable suspicion based on the objective evidence that further investigation is required, this cannot be raised to the level of that necessary for an arrest.”
Here, in all of the circumstances the judge concluded, there were sufficient factors to allow the officer to complete an investigatory detention. The police had a recent or ongoing criminal offence and there was a nexus between Peekeekoot and the crime. “A robbery had recently been committed by native males wearing black and white clothing,” said the judge “The officers, in their brief patrols, had not seen anybody else on the streets in the vicinity. There were some similarities between the group and the reported details. The robbery occurred only a few blocks from where this group was located. It had occurred within minutes of the officers observing the group on the street.”
As for the safety search, the Crown tried to connect the reported robbery at knife point with a concern over officer safety. Although the judge found this made sense, he did not accept this proposition as justifying the search because that is not what the officer said. Rather, the officer testified that he completes a search with EVERY investigative detention. “The officer did not testify as to any grounds he had for concerns for his safety,” said the judge. “Rather, this is something he effects every time he engages in an investigatory detention. On the facts of the case before me, there was no reasonable basis given for suspecting officer safety was in issue in this particular case. The officer did not testify as to this.” Since the officer did not sufficiently articulate his cause to conduct the search, it was unreasonable and breached s. 8 of the Charter.
In excluding the machete as evidence under the s. 24(2) inquiry, the judge found the police conduct in breaching the Charter was serious. “It has been found the officer completes a search in each and every case where he detains someone for an investigatory purpose,” said the judge. “He apparently does this regardless of the stage of the inquiry or the nature of the investigation. This is not permissible on the authority of Mann. There was no articulable cause provided.”
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