Trunk search incident to impaired arrest lawful: evidence admitted in murder case

Mike Novakowski
September 08, 2017
By
In R. v. Pearson, 2017 ONCA 389, a man was killed after being shot in the back with a shotgun. The following day a police officer stopped Damian Pearson driving his car, concerned about impaired driving, given the manner in which the car was being operated. When he approached the driver’s side of the car, the officer noticed unusual redness in Pearson’s eyes. His pupils were dilated and the officer smelled burnt marijuana. Pearson was slow in retrieving his papers and failed field sobriety tests. The officer arrested Pearson for impaired driving and he searched the vehicle, seizing two shotgun shells in a knapsack in the trunk.

About two weeks later, another man was killed with a shotgun and, forensically, the shells found in Pearson’s car were similar to those used in both killings. Following further investigation, Pearson was subsequently charged with both murders and part of the evidence against him were the shotgun shells found during the traffic stop.

A judge of the Ontario Superior Court of Justice found the traffic stop and impaired driving arrest to be lawful. The purpose of the trunk and knapsack search was to locate evidence helpful to the impaired driving offence. Thus, the search was lawful as an incident to Pearson’s impaired driving arrest. The two shotgun shells were admissible as evidence and two different juries at two separate trials convicted Pearson of the two murders.

Pearson then challenged his convictions before the Ontario Court of Appeal submitting, in part, that the search of his car was not proper as an incidental to his arrest for impaired driving and therefore the shotgun shells found in it should have been excluded as evidence.

Search incident to arrest
Pearson contended that the search incident to arrest went too far. In his view, searching the trunk (and the knapsack found in the trunk) for evidence related to the impaired driving offence was unreasonable, and the search should have been confined to the area close to the driver’s seat. The Court of Appeal disagreed.

“The arrest of the [accused] for impaired driving was lawful,” said Justice Pardu, delivering the Appeal Court’s judgment. “The search was undertaken to look for marijuana and by a police officer who was not involved at all in the homicide investigations. Discovery of marijuana in the trunk of the [accused’s] car and in his knapsack would have some probative value on the issue of whether his ability to drive was impaired by marijuana. There was a reasonable basis for the officer’s actions and a reasonable prospect of finding evidence of the offence for which the [accused] had been arrested.”

Pearson’s appeal was dismissed and his convictions were upheld.


Mike Novakowski is Blue Line’s case law columnist. He can be contacted at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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