A safety search of an assault arrestee’s bag was justified even though there was no information he possessed a weapon and was handcuffed at the time the search took place. In R. v. Aviles, 2017 ONCA 629, the police responded to a report of an assault occurring at a Mac’s Milk convenience store. The victim told police he knew one of the attackers by name. The other two attackers were a dark skin man wearing baggy hip-hop style clothing and a woman. The victim said he had lost a shoe during the assault and police found it in a nearby alley. Then, while talking with the police, the victim pointed through the convenience store window to three people approaching, a woman and two men, and identified them as his attackers. One of the men was the individual the victim had identified by name. The other man was Walter Aviles. He was wearing a black pea coat, black jogging pants, brown boots and a black baseball cap.
By Mike Novakowski
Aviles was arrested for assault and handcuffed. During the arrest, a grey single-strap shoulder bag dropped from his shoulder. He was escorted to the police car, given his right to counsel and caution, and searched incident to arrest. Two cell phones and a wallet with $160 in cash were found on his person.
Police also picked up Aviles’ shoulder bag and searched it quickly for a weapon for officer safety reasons. Inside the bag, police located a leather box containing a digital scale and several types of narcotics. Aviles was re-arrested for possessing narcotics for the purpose of trafficking, re-advised of his right to counsel and cautioned. A further search of the bag revealed a large knife inside its top flap as well as three cellphones.
At the police station, Aviles was again searched and a bag of cocaine was found in his pea coat pocket. He was charged with possessing controlled substances for the purpose of trafficking and carrying a concealed weapon, but not with assault, as the victim did not want to pursue the assault charge.
At Aviles’ trial in the Ontario Superior Court of Justice the judge found that Aviles had been lawfully arrested for assault. The police had satisfied both the subjective and objective components for reasonable and probable grounds. First, the officer had received a report of an assault directly from the alleged victim. Second, the officer had somewhat corroborated that the assault had occurred from finding the victim’s shoe in the alley where he said he had lost it during the assault. Third, the victim expressly identified the three people approaching the convenience store as the three attackers. Finally, the three people matched in significant detail the description that the victim had initially given: two men and a woman; one man named and known to the victim; the second man (Aviles) with dark skin. In the judge’s view, “a reasonable person placed in the position of [the arresting officer] would conclude that there were indeed reasonable and probable grounds for the arrest.” Since the arrest was lawful, there was no s. 9 Charter breach.
As for the searches, the judge found they were all incident to the lawful arrest and re-arrest of Aviles. The initial search for the purpose of officer safety and the detection of a possible weapon, in the context of an assault arrest, was objectively reasonable in the circumstances. Therefore, there were no s. 8 Charter violations, and Aviles was convicted of possessing controlled substances for the purpose of trafficking and carrying a concealed weapon.
Aviles then challenged his convictions before the Ontario Court of Appeal arguing, among other things, that the police did not have reasonable and probable grounds to arrest him for assault and that the judge erred in finding that the police had grounds to search the shoulder bag, incident to his arrest for assault. He submitted that the police breached his ss. 8 and 9 Charter rights and the evidence ought to have been excluded under s. 24(2).
Reasonable grounds for arrest
Aviles argued that the police had the necessary objective grounds to arrest the person named by the victim but nothing more than a suspicion to believe he was the second man involved in the robbery. He submitted that he was not wearing baggy hip hop clothing as described by the victim and the named assailant could have been walking with a different person by the time he showed up after the assault at the convenience store.
But the Court of Appeal disagreed. Although the arresting officer testified that a pea coat would not be considered baggy hip hop style clothing, the police “were entitled to rely on the victim’s identification of the [accused] as one of his assailants from only a short time before.” There was no arbitrary detention under s. 9.
Search incident to arrest
Aviles contended that the initial search of his shoulder bag was not a lawful search incident to arrest. There was no suggestion that a weapon had been used in the assault and no basis to believe there would be one in the bag. Also, there was no danger to police because all three accused were handcuffed.
The Court of Appeal rejected this submission too. Here, Aviles was under arrest and there was no option for him to leave or take the bag away. Because of the arrest, the police had the power to search it for officer or public safety, preserving evidence, or discovering evidence relevant to the offence for which Aviles was being arrested. And since the police would be taking the bag to the station, the officer was concerned for safety and believed the bag should be checked for a loaded firearm. This concern was informed by Aviles’ arrest for a violent offence even though there was no report of a weapon as part of the assault. Furthermore, the fact all arrestees were handcuffed did not eliminate an objectively reasonable concern of danger to the police from a loaded firearm in the shoulder bag.
As Justice Feldman noted, “the trial judge made no error in his conclusion that the officer had both a subjective and objectively reasonable basis to conduct a search of the bag incident to the [accused’s] arrest in all the circumstances of this case.” There was no s. 8 Charter breach against unreasonable search and seizure and therefore no need to conduct an admissibility analysis under s. 24(2).
Aviles’ appeal was dismissed.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at email@example.com