Blue Line

Search not justified, crucial evidence excluded

September 6, 2016  By Mike Novakowski

1531 words – MR

Search not justified, crucial evidence excluded

The Ontario Court of Appeal excluded a loaded handgun after police were unable to justify their search of a car.

In <R. v. Dunkley, 2016 ONCA 597> two plainclothes detective saw the accused acting suspiciously at a Petro Canada gas station. He filled his car and entered and exited the kiosk two or three times. As they drove by, he made eye contact with one of the detectives. The detective thought he had “been made” (identified as a police officer).

Dunkley pulled out of the gas station at a high rate of speed. The detectives followed, suspicious of his activity and driving. The licence plate and car came back registered to Dunkley and the computer check revealed he was on parole for robbery involving a firearm.

Dunkley turned into a McDonald’s parking lot, then an Esso parking lot, seemingly counter surveillance maneuvers. The detectives approached after he entered and then exited the Esso kiosk. One identified himself as a police officer and asked for identification. Dunkley backed away and then ran. The detectives chased, calling out “Stop! Police!” but stopped after one rolled his ankle.

Police returned to Dunkley’s car and opened the unlocked front door to look for identification. A detective saw a gym bag in the back seat, looked inside and saw a handgun. Continuing to search for identification, police looked inside a black laptop bag, also on the back seat, saw the butt end of a black handgun, stopped the search for identification and sealed the car for a search warrant.

Dunkley was located and arrested a short time later and his keys were found in a green space behind a residential area. A search warrant was issued for Dunkley’s car and a Taser and 9 mm Ruger handgun were found.

In the Ontario Superior Court of Justice the accused argued that the search of his car before the warrant was issued was unreasonable under <s. 8> of the Charter. He sought the exclusion of the handgun and Taser under <s. 24(2)>. In his view, he had a reasonable expectation of privacy in his car, which he did not abandon when he fled the gas station.

The Crown countered that the accused had no reasonable expectation of privacy in his car and, even if he did, police had the authority to conduct a search incidental to an inevitable arrest or to conduct an inventory search of the abandoned vehicle under <s. 221(1)> of Ontario’s Highway Traffic Act (HTA).

The trial judge found it was reasonable for the detectives to be suspicious of someone exiting and entering the kiosk two to three times and not unreasonable to investigate further. This suspicious activity, the vehicle owner being on parole for robbery with a firearm, leaving the gas station quickly and the “counter-surveillance manoeuvre” gave the detectives further reasonable grounds to suspect Dunkley was casing gas stations.

The judge found the detectives had reasonable and probable grounds to detain Dunkley for further investigation at the time he exited the Esso kiosk. When Dunkley fled, police had reasonable grounds to search his car to identify who had fled the scene.

The judge also agreed with the Crown that police were entitled to seize the apparently abandoned car under <s. 221(1)> of the HTA and conduct an inventory search. Even if there was a Charter breach, the judge would have allowed the evidence under <s. 24(2)>. Dunkley was convicted of several weapons offences.

Dunkley challenged his convictions to the Ontario Court of Appeal, arguing the trial judge erred in finding no Charter breaches. In his view, police did not have reasonable and probable grounds to detain him, nor the common law or statutory authority under <s. 221> of the HTA to search his vehicle. It was Dunkley position that the gun and Taser should have been excluded under <s. 24(2)>.

{The detention}

Ontario’s top court agreed with the trial judge that Dunkley’s detention, although momentary when the officers confronted him for the purposes of their investigation and identified themselves, was lawful.

“The police have the authority to detain a member of the public for investigative detention upon the formation of a reasonable suspicion that the individual is connected to an offence that has been or is being committed,” said Justice Hourigan, speaking for the court.

<At the point at which the officers decided to approach the [accused], the evidence supported a reasonable suspicion that the appellant was in the process of casing gas stations. The police observed him exiting and re-entering the Petro-Canada kiosk. While inside, he moved around without purchasing anything.

The officers believed that they had been identified as police when he exited the kiosk and the [accused] left the parking lot at a high rate of speed. He then engaged in a common counter-surveillance technique in the MacDonald’s parking lot.

Having just gone to a gas station, the appellant then stopped at another gas station. The police officers obtained information at that stage that the [accused] was on parole for robbery and firearms convictions.

This was not a situation where the police stop a member of the public based on a generalized feeling that the individual is doing something wrong. This stop was not based on police hunches. These were two experienced detectives who observed a series of suspicious movements by the appellant. There were reasonable grounds to suspect that the appellant was casing gas stations> [para. 30-31].

{The search at common law}

Since warrantless searches are presumptively unreasonable, the Crown has the burden of establishing on a balance of probabilities that such a search is reasonable. The search could not be upheld on the basis of either the common law authority as a search incident to arrest or incident investigative detention.

{(i) Incident to arrest}

A search incident to arrest can be conducted to ensure the safety of police and public, to protect evidence from destruction and to discover evidence to be used at trial. A search may be conducted prior to arrest as long as the grounds for arrest exist at the time of the search. Police did not have reasonable and probable grounds to arrest Dunkley at the time of the search.

“When they approached the [accused], they were still in the investigative stage,” said Hourigan.

{(ii) Incident to investigative detention}

The power to search pursuant to an investigative detention is much more limited than a search incident to arrest and must be related to articulable safety concerns. A search for identification after an accused has fled the scene has no nexus to a concern for officer or public safety directly arising out of an investigative detention. Thus, the search of the car could not be justified on this basis.

{s. 221(1) HTA}

Pursuant to a lawful vehicle impoundment under <s. 221(1)>, police may conduct an inventory search to keep the impounded property safe. The fact police may also have been looking for a weapon while conducting an inventory search does not render the search unlawful, nor are they limited to itemizing visible property. They have the authority to open bags or other containers in order to itemize the contents.

The section is triggered if a vehicle is “apparently abandoned” and that determination depends on the facts of each case. Dunkley’s vehicle was in the lot of a commercial establishment and was not parked there with the intent to abandon it and flee police.

It was not until the officers confronted Dunkley that he fled on foot. Although this could be consistent with abandonment, without more it was difficult to conclude that he intended to abandon his vehicle. In Hourigan’s view, the trial judge erred in concluding the vehicle was apparently abandoned within the meaning of <s. 221(1)>. Since this provision did not apply, the search was not authorized by law and unreasonable under <s. 8>.

{s. 24(2) Charter}

The appeal court excluded the evidence under <s. 24(2)> even though it was important to the Crown’s case. The Charter breach was flagrant and favoured exclusion. Police “acted on a hunch and, rather than wait for a warrant, they ignored the [accused’s] Charter rights in proceeding to search for ‘identification’.” The impact of the search on Dunkley’s Charter protected interests was also significant.

Dunkley’s appeal was allowed, the evidence excluded and acquittals entered on all charges.

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