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Search incident to arrest requires proper purpose

Police must have a proper criminal justice purpose when searching as an incident to arrest; they cannot simply rummage through personal effects.

In R. v. Majedi, 2009 BCCA 276 police stopped the accused after a computer check indicated she was breaching her recognizance by being in the area. She told officers the provision was no longer in effect but did not have her court papers with her. A call to her “lawyer” confirmed this, but the officers weren’t sure the person they spoke to was a lawyer. A police dispatcher confirmed the provision remained in force and Majedi was arrested, handcuffed and secured in a police vehicle.

The officers decided to impound Majedi’s vehicle because it was illegally parked. A search turned up a woman’s handbag and a backpack. One officer searched the handbag, testifying he did so to look for court papers and to inventory possible valuables, and found some money. The other officer searched the backpack to inventory it, protecting police from potential liability if valuables went missing, and to search for sharp objects to protect custodial staff.

Drug paraphernalia and cash were found in the backpack and Majedi was re-arrested for drug trafficking. Further searches of the car yielded more evidence to support the drug charge, but it was subsequently determined that the recognizance condition was no longer valid.

At trial in British Columbia Provincial Court, Majedi challenged her arrest and the admissibility of the evidence the officers found. She submitted her rights under s.8 of the Charter had been breached and that the evidence should have been excluded under s.24(2), but the trial judge rejected her arguments. He found the arrest was valid and the searches that followed were lawful as an incident to that arrest.

The searches were not simply for one purpose – to inventory the purse contents, he ruled. One purpose was to inventory valuables but the officers were also concerned about safety – there may have been a sharp item (needle or knife) or other weapon in them. The second purse was also searched to find court documents, which may have assisted Majedi. Even if the searches breached her rights, the judge would have admitted the evidence under s.24(2).

Majedi appealed to the BC Court of Appeal, contending the searches were for inventory only, not a valid criminal justice purpose, and therefore did not fall within the scope of a proper search incident to arrest. Thus, the searches were unreasonable under s.8 and the evidence should have been excluded under s. 24(2), she submitted.

The Crown countered that the searches were valid as an incident to arrest and, even if they were not, an inventory search was permissible when the vehicle was impounded.

Although warrantless searches are presumptively unreasonable, a search incident to arrest can justify them. Justice Chiasson, writing the unanimous opinion, examined the power to search as an incident to arrest, noting a number of propositions:

• Officers undertaking a search incidental to arrest do not require reasonable and probable grounds; a lawful arrest provides that foundation and the right to search derives from it;

• The right to search does not arise out of a reduced expectation of privacy of the arrested person, but flows out of the need for authorities to gain control of the situation and to obtain information;

• A legally unauthorized search to make an inventory is not a valid search incidental to arrest;

• The three main purposes of a search incidental to arrest are: one, to ensure the safety of police and the public; two, to protect evidence; three, to discover evidence;

• The categories of legitimate purposes are not closed: while the police have considerable leeway, a valid purpose is required that must be “truly incidental” to the arrest;

• If the justification for the search is to find evidence, there must be a reasonable prospect the evidence will relate to the offence for which the person has been arrested;

• Police undertaking a search incidental to arrest subjectively must have a valid purpose in mind, the reasonableness of which must be considered objectively.

In this case, Chiasson found there was no issue of officer safety apparent to justify entering the car; Majedi was handcuffed and in a police vehicle. However, because the vehicle was to be impounded as an incidence of the arrest, the officer was entitled to enter it to determine whether there were dangerous items or weapons inside.

The search of the purses, however, had nothing to do with the crime for which Majedi was arrested – breach of recognizance.

“The facts needed to charge her for that crime were known: she was identified as a person in a place she wasn’t supposed to be,” said Chiasson. The officer testified he was looking for exculpatory papers, a valid purpose that was connected to the arrest. Majedi stated the papers were not there and the trial judge was entitled to accept the officer’s stated purpose as an additional factor relevant to the validity of the search.

Furthermore, both officers said they searched the purses, which would accompany the arrestee to police station, for the safety of the jail staff. The officers reasonably believed the purses would likely accompany Majedi to the jail, a belief that was objectively reasonable. On this point, Chiasson stated:

bq. The officers relied on their experience that personal effects such as purses usually accompany arrested persons to jail. They also relied on their experience and jail staff practise that requires an inventory of the contents of personal effects that are held by the police for safe keeping. In my view, the officers believed the purses would accompany Ms. Majedi to the police station and would be searched there by jail staff. The subjective and objective requirements for searching the purses for objects that might imperil the safety of jail staff were met (para. 32).

The court did caution that “the law is very clear that the police cannot simply rummage through the personal effects of arrested persons in the absence of a proper criminal justice purpose.”

Since the searches in this case were justified as an incident to arrest, it was unnecessary to determine whether they would have been valid solely for inventory purposes. Majedi’s appeal was dismissed.