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Strip search conducted unreasonably


November 10, 2014
By Mike Novakowski

Although a strip search may be justified, the manner in which it is carried out may render it unreasonable.

In <R. v. Muller, 2014 ONCA 780,> police received information from two confidential informants, both criminals and drug users. One was of unproven reliability, the other of undisclosed reliability. The informants said that a man named “Biggie” was selling crack cocaine out of an apartment belonging to another man (“Peter”), who received drugs in exchange for use of the apartment.

The information was current as one of the informants had bought drugs from “Biggie” earlier that day. Biggie was described as a big black man, about 240 pounds, six feet tall, with a large build and short brown hair in braids.

The reliable informant said Biggie had bought a handgun for protection, but that he had not seen it. Police were able to identify the lessee of the apartment and he matched the description of “Peter”. On the basis of this information, officers obtained a <s. 11 CDSA> search warrant, which was executed by the Emergency Services Unit.

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Four people found inside the target apartment were arrested but no drugs were found. As the warrant was being executed, officers conducted surveillance outside to ensure people did not escape or throw drugs off the balcony. They noticed Muller walk out through a side door located not far from the apartment being searched. He fit Biggie’s general description: a six foot tall black man with a large build.

Wearing clothing that clearly identified them as police, the officers got out of their vehicle and approached Muller on foot. As they did so, he discarded a digital scale and continued to walk away. One officer picked up the scale and noticed a residue resembling crack cocaine.

Catching up to Muller, the officers asked him for ID. He only identified himself orally and had no documentary proof of who he was. He was arrested on a charge of possessing crack cocaine for the purpose of trafficking, advised of his right to counsel and frisk searched.

Three cellphones and some money were found, but no drugs or other evidence of drug trafficking. Thinking Muller was Biggie and that he was trying to hide something from them, the officers took him to the police station.

Two male police officers searched Muller in the strip search room. He was asked to remove his clothing piece by piece and hand it over. When naked, he was asked to turn around, “bend over and spread his butt cheeks.” As he did so, a plastic bag inside another bag was seen visibly concealed between his buttocks. An officer removed it and found crack cocaine, cocaine and a dozen oxycodone tablets inside.

The search was conducted in a room with the door open, recorded on video and electronically viewable by others in the station. The officers did not obtain supervisory approval for the strip search. The other four persons arrested inside the apartment were also subsequently strip searched at the station but nothing was found.

{Searches found lawful}

An Ontario Superior Court of Justice judge found both the arrest and incidental frisk and strip searches lawful. He concluded that the informant information alone was insufficient to justify the arrest. However its cumulative effect, along with the observations of the surveillance officers (the physical similarity between the accused and Biggie’s description, timing and location of the accused’s departure and his attempt to discard a digital scale and move away from police) provided the requisite reasonable grounds to make the arrest.

Police had the necessary grounds to justify the strip search. First, Muller had discarded a digital scale, signalling he was trying to conceal material. Second, although the frisk revealed no drugs, police did find money and three cell phones, further enhancing grounds to believe Muller was involved in selling drugs. Finally, Muller was evasive during his arrest, refusing to produce identification or an address.

“In these circumstances, the officer believed that the accused was trying to hide something from him,” said the judge. “The evasive manner of the accused, together with his earlier attempt to dispose of evidence, offered some basis for believing that he might have taken steps to conceal evidence of the offence.”

The judge was also satisfied the strip search, although not a model one, wasn’t conducted in an unreasonable manner. There was no evidence the open door or electronic video actually caused a privacy breach. There were grounds justifying the search procedure and the lack of supervisory approval did not change this. Finally, the bag was concealed between Muller’s buttocks and wasn’t in his anus. There was no Charter breach, the evidence was admissible and Muller was convicted.

Muller challenged his conviction to the Ontario Court of Appeal arguing his warrantless arrest and strip search were both unlawful since they were not based on reasonable grounds and the strip search wasn’t conducted in a reasonable manner.

{Arrest and frisk}

Muller submitted his arrest was unlawful because police did not have reasonable grounds to arrest him. He contended that the officers did not reasonably believe he possessed drugs; accordingly the incidental searches that followed were unreasonable.

The Crown argued that the reasonable grounds standard had been met; it wasn’t equivalent to “proof beyond a reasonable doubt” or even “a prima facie case”. In the Crown’s opinion, the cumulative effect of all the information known to police prior to Muller’s arrest supported an objectively reasonable belief that he possessed crack cocaine for the purpose of trafficking and, therefore, the arrest and search incident to arrest were lawful.

A peace officer is permitted under <s. 495(1)(a)> of the Criminal Code to make a warrantless arrest if they believe, on reasonable grounds, a person has committed or is about to commit an indictable offence. In describing this power, Justice Watt, writing the court’s judgment, stated:

<(T)he arresting officer must subjectively have reasonable grounds on which to base the arrest. However, that on its own is not enough to make the arrest lawful. In addition, those grounds must be justifiable from an objective point of view. A reasonable person placed in the position of the officer must be able to conclude there were indeed reasonable grounds for the arrest> (references omitted, para. 36).

Watt, agreeing with the trial judge, noted that the confidential informants’ information, by itself, was insufficient to meet the reasonable grounds threshold. Although “the information was somewhat specific,” it came from one source untested and the other unverified. However, police had more. Muller matched “Biggie’s” general description, left as the warrant was being executed and discarded the scale with crack residue when officers approached.

“In combination, the information provided by the informants, coupled with the observations made of the (accused’s) behaviour, met the standard imposed by s. 495(1)(a) of the Criminal Code,” said Watt.

“The proper issue wasn’t whether the police had reasonable grounds to believe the pedestrian was Biggie, but rather, whether they had reasonable grounds to believe the pedestrian had been or was in possession of drugs for the purpose of trafficking.”

Following a lawful arrest, police may conduct a search incidental to that arrest.

“A search incident to arrest derives its authority from the lawful arrest and requires no independent justification, either at common law or under the Canadian Charter of Rights and Freedoms,” said Watt.

“Breaking this down, for a search to be justified as an incident to arrest, the arrest itself must have been lawful and the search must have been incident to the arrest, meaning the search must have related to the reasons for the arrest itself.” As for this case, the court stated:

(references omitted, para. 43).

Muller next contended that there were no reasonable grounds upon which to base the strip search that would rebut the presumption of unreasonableness. He suggested the trial judge combined neutral factors (possession of cellphones), misapprehensions of evidence (Muller’s refusal to identify himself) and a negative factor (failure to find drugs on the frisk search) as positive evidence sufficient to justify a strip search to look for drugs.

The Crown submitted that the strip search was reasonable in the circumstances. Muller had been lawfully arrested and frisked and the purpose of the strip search was to discover evidence of contraband or other drug paraphernalia. The money and cellphones found, as well as Muller’s refusal to produce identification or provide an address, solidified the grounds required to justify it.

Watt outlined the requirements for a Charter compliant strip search as follows:

  • It must be conducted as an incident to a lawful arrest;
  • It must be conducted to discover weapons or evidence on the body of the arrested person related to the reason for the arrest;
  • It must be based on reasonable and probable grounds for concluding a strip search is necessary in the circumstances of the arrest; and
  • It must be conducted in a reasonable manner.

“Strip searches conducted as a matter of routine policy, even if executed in a reasonable manner, are not reasonable within <s. 8> of the Charter,” he added.

The arrest was lawful. It was for drug trafficking and police were searching for evidence related to his arrest: possession of crack cocaine for the purpose of trafficking. Watt found the trial judge did not err in determining that police had the grounds necessary to conduct a strip search for the purpose of discovering evidence relating to drug trafficking. In other words, police had reasonable and probable grounds to believe a strip search was necessary in the circumstances of the arrest.

Although the circumstances surrounding Muller’s identifying himself wasn’t relevant, the other circumstances were properly taken into account. The fact that no drugs were found on the frisk search and the arresting officer’s experience with drug dealers concealing crack cocaine “in their underwear or in their butt cheeks” was a factor to consider.

The small quantity of cash, along with the arresting officer’s experience that multiple cellphones was consistent with drug trafficking, was also properly considered. Finally, police evidence that only 7.5 per cent of strip searches of suspected cocaine traffickers found drugs was also relevant, although not a determinative factor.

{Manner of search}

Muller argued that the manner in which the strip search was conducted was unreasonable. He was required to face an open door, his genitalia were exposed directly to anybody who may pass by, and indirectly by video to anyone with access to it, and he wasn’t asked to consent to the search being recorded.

The Crown submitted that the search was conducted reasonably and was generally compliant with the guidelines established by the Supreme Court of Canada in <R. v. Golden, (2001)3 S.C.R. 679>.

Despite the search being carried out by two officers of the same gender in an appropriate room, the court nonetheless found the following factors rendered the search unreasonable:

  • No supervisory authorization was sought to conduct it.
  • The door to the strip search room was left open during the search, contrary to usual practice. Muller, standing naked, faced the open door into a hallway accessible by others of either gender.
  • The search was videotaped and could be viewed electronically by others at various places in the police station.
  • The evidence was unclear whether Muller had been informed he was being videotaped.
  • Muller wasn’t given the choice of removing the plastic bag from between his buttocks. Instead, a police officer removed it.
  • No adequate record of the strip search was created (other than the videotape).

Although the warrantless arrest was lawful and the criteria for a strip search met, the manner in which it was conducted was unreasonable.

Muller’s appeal was allowed, his convictions set aside and a new trial ordered.

Sidebar

The Supreme Court of Canada provided a framework in <R. v. Golden, (2001) 3 S.C.R. 679> for police to follow in conducting Charter compliant strip searches by offering guidelines, in the form of questions:

  1. Can the strip search be conducted at the police station and, if not, why not?
  2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
  3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
  4. Is the police officer(s) carrying out the strip search of the same gender as the individual being searched?
  5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
  6. What is the minimum of force necessary to conduct the strip search?
  7. Will the strip search be carried out in a private area such that no one other than the individuals engaged observe it?
  8. Will the strip search be conducted as quickly as possible and in a way that ensures the subject is not completely undressed at any one time?
  9. Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?
  10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?
  11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?