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Urgency not a triggering factor for search


December 5, 2011
By Mike Novakowski

Exigent circumstances are not required when exercising teh common law poer to search as an incidnet to arrest. In R. v. Asp, 2011 BCCA 433, the accused left a hotel in the middle of the night in a manner that a private security guard at the hotel found suspicious. 

Asp had left the hotel without informing the front desk. The security guard followed the vehicle driven by Asp, who had a female passenger with him, and called 911. The guard started to scream, reported his location, and then the phone went dead. The police attended and saw two males involved in an altercation. Asp’s vehicle rolled forward and struck a pole. The collision dislodged the lid from the top of the white box in the backseat, exposing plastic bags of marijuana. 

Asp and his female companion were initially arrested for possessing a controlled substance and then re-arrested for possession for the purpose of trafficking. The vehicle was towed to the police station where it was searched without a warrant. A total of 13.59 kgs. of marihuana, found in 54 zip-lock bags, was seized. 

Although the police never investigated, arrested or charged the accused with theft from the hotel, he was charged with possessing marihuana for the purpose of trafficking.

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At trial in British Columbia Supreme Court it was agreed that the police could have obtained a search warrant had they applied for one; there were no exigent circumstances such that evidence in the vehicle might have been lost or destroyed had they waited and applied for a warrant; and there was no risk evidence would have been removed from the vehicle while awaiting a warrant. 

It was further agreed that the police searched the vehicle as part of a drug investigation and they did not seek Asp’s consent.  The trial judge concluded that the police did not breach s. 8 of the Charter by searching the vehicle and seizing the marijuana. She found that both the plain view doctrine and the common-law power of search incidental to arrest applied. 

“Neither the initial seizure of the marijuana from the [accused’s] vehicle seen by the police in plain view, nor the subsequent search of the vehicle and the further seizure of marijuana in the context of a search incidental to arrest, constituted a violation of [the accused’s] s. 8 Charter rights,” said the judge. A conviction followed.

Asp appealed his conviction to the BC Court of Appeal, contending that the warrantless search of his vehicle and the seizure of the drugs were unreasonable under s. 8 and that the drugs should have been excluded under s. 24(2). In his view, the facts neither supported the application of the plain view doctrine or the power of search incidental to arrest. He submitted, among other grounds, that the search of his vehicle did not fall within the common-law power of search incidental to arrest because the Crown failed to establish how much time passed between the arrest and search and did not provide an explanation for any delay. 

Asp suggested that the distance from the place of arrest to the police station as well as how much time passed from the arrest until the vehicle was searched were not known.

Search Incidental to Arrest

Justice Frankel, authoring the unanimous opinion for the Court, first cited a useful summary of the common-law power of search incidental to arrest as it applies to searches of vehicles:

    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 the authorities to gain control of the situation and the need 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 the 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;
    
    The police undertaking a search incidental to arrest subjectively must have a valid purpose in mind, the reasonableness of which must be considered objectively. [reference paras. omitted]

As for the delay between the arrest and search, Frankel found the search took place within a reasonable amount of time. Although there will be some cases in which the Crown will be required to provide a reasonable explanation for the delay between the arrest and search, this was not such a case. Here, the police arrived at the scene of the altercation at 3:00 a.m. The accused was arrested shortly after that and the date and time stamp on photographs that were tendered as an exhibit at trial established that the search took place approximately two and one-half hours after Asp was taken into custody and his vehicle towed to the police station. 

“In my view, that period is prima facie reasonable,” said Frankel. “There is no delay that the Crown needs to explain.”

Since the drugs were seized by the police in the lawful exercise of the power of search incidental to arrest, it was not necessary to address the application of the plain view doctrine. Asp’s appeal was dismissed.