Secondary purpose didn’t taint stop legality
January 11, 2016 By Mike Novakowski
1416 words – MR
Secondary purpose didn’t taint stop legality
Having another purpose unrelated to highway safety does not necessarily render a traffic stop unlawful.
In <R. v. Shipley, 2015 ONCA 914,> a uniformed police officer working nightshift in a high drug trafficking area saw a car at 9:48 PM stopped diagonal to the marked parking spots in a Royal Bank lot. The car’s interior lights were on and the driver was alone looking down as if doing something on his lap.
The driver appeared startled when he looked up and saw the officer, “like a deer caught in the headlights.” The officer did a U-turn to go back and investigate why he was in the empty bank parking lot, at night, parked strangely, with the interior lights on and why he would be startled upon seeing police.
The car left the lot, turning in the opposite direction. The officer did another U-turn and followed the vehicle, entered the license number into his computer, and learned it was a rental vehicle.
The officer pulled the car over and approached the driver, asking to see the vehicle’s documentation and the driver’s license. Shipley identified himself as Stephen Casey and told the officer he was licensed but did not have it with him, nor was he able to produce any photo identification.
When the officer ran “Casey” on CPIC it came back as an alias to Stephen Shipley, who was on bail for outstanding drug related offences. The computer entry produced a 4×4 photograph of Shipley. To confirm the driver’s identity, the officer asked him to walk back to the cruiser. When Shipley complied and stepped out of his car, the officer noticed a number of plastic bags containing a white substance on the driver’s door and a further plastic bag with a white rock in it on the passenger seat.
Shipley was arrested for possessing cocaine and was patted down. Police found $450 in various pockets, $25 and a dime bag of cocaine in his wallet and a black cell phone. A search of the car uncovered the plastic bags of cocaine from the front of the vehicle, a baby seat in the rear with bags of cocaine partially hidden in the cloth portion, another cell phone, a digital scale with white residue on it, marijuana seeds and latex gloves.
Shipley was strip searched in a private area of the police station but no drugs were found on his person or in his clothes. He was charged with possessing cocaine for the purpose of trafficking and possessing proceeds of crime not exceeding $5,000.
In the Ontario Superior Court, the officer admitted in cross examination that a rental car is often used in drug trafficking. Drug involvement by the driver was one of a number of possibilities going through his mind when he decided to stop the vehicle and investigate further. Shipley argued that the officer did not have grounds to stop him, order him out of the car and then search the vehicle. In his view, the stop was clearly a ruse based on a hunch that drugs were involved.
Since the vehicle stop was unlawful, so was the search of his car, his person and the strip search that followed. He submitted that any evidence found should be excluded under <s.24(2)> of the Charter.
The Crown, on the other hand, submitted that the officer had reasonable grounds to stop the car under <s. 216(1)> of Ontario’s Highway Traffic Act (HTA) and ask Shipley to leave his car to confirm his identity and whether he was licensed to drive. The cocaine was clearly visible upon Shipley opening the door.
The officer had every right to then arrest him and search the vehicle incidental to the arrest. As well, the Crown opined, the officer needed to do a pat down search for safety reasons incidental to Shipley’s arrest and strip search him later before he was placed in the general prison population.
The judge found the officer had a dual purpose in deciding to stop the accused. First, he wanted to make sure Shipley was properly licensed and, second, he wanted to know why he was stopped in the bank parking lot. He ruled that the stop was not a ruse and the inquiries made, including the request that Shipley step out of his car, did not extend beyond the scope of <s. 216(1)> of the HTA.
<The officer, under these circumstances, was well justified in stopping the applicant under the H.T.A. to ensure he was properly licensed. There was nothing improper for the other reason for his stop, which was to investigate why the [accused] was stopped at an empty bank parking lot at night, with interior lights on, in a high drug area, and looking startled upon seeing the police.
I further conclude that the officer was justified in requesting that the [accused] step to his cruiser to determine his I.D. The [accused] did not have a license with him, contrary to the H.T.A. He was unable to produce any photo I.D. He was driving a rented car. He had previously looked startled upon seeing the police. He gave a name which came up with an alias when searched on the officer’s computer.
The officer had a picture on his computer screen and an individual a number of feet away in his car at night with lighting obviously not at its best. Under those circumstances I think it entirely reasonable for the officer to ask the [accused] to attend at his car to be able to do a proper photo comparison with the [accused] next to his photo on the computer screen.
Once the [accused] opened the door to his vehicle the drugs were clearly visible to the officer, both on the driver’s door and the passenger seat. The officer then had reasonable grounds to arrest the [accused] and search the vehicle> [2014 ONSC 4795, paras. 23-25].
As for the strip search, it was properly conducted and reasonable in the circumstances. It was not simply being done as a matter of routine. Shipley had been arrested for drug trafficking and the purpose of the search was to discover illegal drugs secreted on his person. It was conducted in private at the police station by officers of the same gender with the accused removing his own clothes.
As bail was to be opposed, Shipley would be placed in the general prisoner population. Police would not want drugs smuggled into the jail hidden on his person. There were no Charter breaches and therefore no reason for a <s. 24(2)> analysis. Shipley was convicted as charged.
In the Ontario Court of Appeal Shipley argued that his <ss. 8 and 9> Charter rights had been breached. In his view, the trial judge erred in finding that the arresting officer had reasonable and probable grounds to detain him and search inside his vehicle. He submitted that the drugs found around the driver’s seat should be excluded under <s. 24(2)> but the appeal court, in a short endorsement, rejected this argument.
<We agree with the trial judge that the officer, in order to determine the [accused’s] identity, was justified in requesting that [he] step out of his car and come to the police cruiser. The [accused] did not have a licence with him as required by the HTA, and he was unable to produce any photo identification.
The officer had a picture of the person whose name was the alias the [accused] had given him showing on his computer screen in the police car. As a result, it was entirely reasonable for him to ask the [accused] to come over to the police car to compare the [accused] with the image on the computer screen to properly identify him for HTA purposes.
When the [accused] stepped out of his vehicle, the dime bags and rock of cocaine around the driver’s seat were in plain view> [paras. 4-5].
The evidence was admissible and Shipley’s appeal was dismissed.
(Additional facts taken from <R. v. Shipley, 2014 ONSC 4795>).
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