By Mike Novakowski
BC’s highest court has ruled that the police may ask a detainee narrowly tailored safety questions in the course of a protective search incidental to an investigative detention.
By Mike Novakowski
In R. v. Patrick, 2017 BCCA 57, a police officer stopped the accused driving an SUV at 4:20 a.m. The officer recognized the vehicle’s licence plate number and was aware that someone was attempting to register it in the name of a person whose identity had been stolen. There were also three other large men in the vehicle. The front passenger appeared passed out and was difficult to arouse. A rear seat passenger had two black eyes and a gash on his forehead. After identifying the three passengers, the officer conducted background checks and determined they were known to be involved in the drug trade and violent. Patrick also had a criminal record, but it was dated and the officer did not consider it significant. Three other uniformed officers arrived as backup. Following further investigation at the roadside, the police suspected the vehicle had been obtained fraudulently and everyone in it was told they were being detained for investigative purposes.
The SUV occupants were asked to step out of the vehicle, one at a time. The passengers were cooperative and were patted down. When Patrick was asked to get out, he turned to his right with his back to the officer and appeared to be fumbling with something. After two requests to show his hands went ignored, police entered the vehicle and yelled at Patrick to show his hands. He complied and exited the vehicle. As he did so, the officer noticed an oddly shaped, unnatural bulge in the area of his right shoulder under his jacket. The officer told Patrick to keep his hands where she could see them and asked him, “Do you have something on you?” He said he did, patted his right shoulder and, when asked what he had, said it was a shotgun. Police then retrieved a loaded, sawed-off shotgun from under Patrick’s jacket. He was arrested for carrying a concealed weapon, handcuffed, searched and advised of his right to counsel. The three passengers were released at the scene. Patrick was transported to the police station and was charged with three offences related to the discovery of the sawed-off shotgun.
At trial in British Columbia Supreme Court, Patrick conceded that the officer had the requisite reasonable grounds to detain him at the roadside for investigative purposes and to conduct a protective pat-down search for safety. However, he contended that the manner of the search – asking him a question instead of patting him down – exceeded the scope of a safety search. The Crown, on the other hand, argued that the two questions asked by the officer were a legitimate extension of the search power incident to investigative detention because these inquiries were motivated by a safety concern. In the Crown’s view, the police are allowed to ask a detainee questions like “Is there something I need to be worried about?” or “Do you have anything on you?” before conducting a protective pat-down search.
The judge found that the questions the officer asked Patrick at the roadside and the responses to those questions breached his s. 8 rights. The trial judge excluded the shotgun and other evidence seized at the roadside under s. 24(2). Patrick was acquitted of all charges.
The Crown challenged the trial judge’s ruling to the British Columbia Court of Appeal arguing that the trial judge erred in law in concluding that Patrick’s s. 8 Charter rights were violated during the roadside stop. In the Crown’s opinion, a police officer has the power to ask a detainee if they are in possession of anything that may cause injury before embarking upon or in the course of conducting a permissible pat-down search incident to a lawful investigative detention. Patrick took the contrary view, submitting that the police were not entitled in any circumstances to ask questions preliminary to or in the course of a permissible pat-down search. In his view, a search incident to an investigative detention is restricted to physical pat-downs of detained persons. Furthermore, Patrick suggested that the questions asked were impermissibly broad and ran afoul of the strictures governing police powers to conduct a search incidental to an investigative detention.
Search Incident to Investigative Detention
After reviewing the case law on investigative detention, the Court of Appeal concluded that the power to conduct a search incident to one is not limited to a physical pat-down of a detainee. Justice Fitch, speaking for the unanimous Court, stated:
In my view, questioning a detainee about to be frisk searched as to whether they are in possession of anything that might cause the searching officer injury is minimally intrusive search. In some respects, it is less intrusive than a physical pat-down search. I would hold that narrowly tailored questions of this kind motivated solely by safety concerns are permissible. … [A]sking a detainee whether they are in possession of anything that might cause injury to an officer about to execute a pat-down search constitutes a justifiable exercise of the powers associated with the duty of police officers to preserve the peace, prevent crime and protect life. That the search takes the form of minimally intrusive questioning as opposed to physical contact does not, standing alone, make the manner of the search unreasonable.
Nothing compels a detainee to answer such a question. It stands to reason, however, that the police will be afforded additional latitude in determining the manner in which the search needs to be conducted if the detainee declines to respond. [references omitted, paras. 102-103]
The Court of Appeal also noted that if the police were limited to only physical contact with a detainee, a loaded, sawed-off shotgun – as was found in this case – could discharge on a pat-down, imperiling the lives of everyone present. As well, “detainees may also be in possession of concealed sharp objects like knives or uncapped hypodermic needles that could seriously injure an officer conducting a pat-down search if no prior inquiry is made of the detainee about whether they are in possession of any such items.”
The issue about whether or not a response to a safety question would be admissible as evidence at the trial proper, since s. 10(b) had not been provided in this case, was left for another day. The Court of Appeal also declined to consider if the open-ended question asked by the officer was a justifiable exercise of her common law powers, preferring to leave the resolution of this issue to a new trial. Since the trial judge erred in law in considering whether Patrick’s s. 8 rights were violated in the course of the roadside stop, a new trial was ordered on the charges.
Editor’s note: Keep in mind that a question like “Do you have anything on you?” is not as narrowly focused as a question such as “Do you have anything on you that could hurt me?” In the former, it could be interpreted as “Do you have anything illegal on you?” and suggested that the officer is fishing for evidence of an offence, such as drugs or other contraband, while the latter appears to be solely motivated by a safety concern. Other narrow variations may include, “I am going to pat you down for my safety. Do you have anything on you that is dangerous or could harm either of us?” or “I am going to search you for weapons or things that could harm me. Do you have anything like that on you?”
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at: firstname.lastname@example.org.