By Mike Novakowski
The manner in which police carry out an investigative detention can make it arbitrary, Newfoundland’s highest court has ruled.
By Mike Novakowski
In R. v. Squires, 2016 NLCA 54 an anonymous tipster phoned police in the early hours of the morning to report a man in a “black jeep” near a St. John’s community centre had a firearm, possibly a shotgun or rifle.
The first officer on scene saw a lone black SUV with a male occupant in the parking lot. He turned on his emergency lights, got out, drew his firearm and told the man, whom he recognized as Squires from a previous occasion, to put his hands out the window. Squires fully cooperated.
A second officer arrived a few minutes later, also drew her gun and Squires was told to exit and lie face down on the ground. He was handcuffed, placed in a police car, read his rights and caution and told police were investigating a weapons complaint. He admitted there was a shotgun in his vehicle.
The first officer, unaware of Squire’s statement, used a flashlight to look through the tinted glass to determine if there was anyone else inside and to ensure officer safety. Not seeing another occupant, he looked again and saw the partially covered barrel of a shotgun on the back seat. He opened the door, seized the gun and shells, and told the second officer to arrest Squires for unsafe handling of a firearm.
Squires was re-advised of his rights, cautioned, then arrested for careless use of a firearm and breach of a weapons prohibition. He was charged with several firearms offences.
In Newfoundland Provincial Court the first officer testified that he did not have grounds to arrest Squires prior to observing the firearm but nonetheless searched the vehicle incident to the arrest. The second officer claimed reasonable grounds for the arrest based on the phone tip, Squires’ admission about a shotgun and the fact the first officer saw the firearm. It was clear, however, that the formal arrest made by the second officer had not occurred before the gun and shells were actually observed and seized.
The judge concluded that Squires’ rights under ss. 8 and 9 of the Charter had been breached. First, he found the reasonable suspicion standard justifying an investigative detention was not met.
[The first officer] had not formed a subjective belief in the truthfulness of the tip he had received… There was no objective evidence in support of that tip beyond the presence of a black vehicle at the community centre. By removing the accused and handcuffing and searching him, from the vehicle, he arbitrarily detained the accused and violated his section 9 rights.
The search of the vehicle was also unreasonable.
By performing a visual search of the vehicle by examining by flashlight through the tinted windows, he violated the section 8 rights as he was basing his search as an incident of arrest and there had been no lawful arrest.
The judge excluded the evidence of the shotgun and shells and acquitted Squires. The Crown appealed Squires’ acquittals to Newfoundland’s top court, arguing the trial judge erred in finding an arbitrary detention and in ruling that the vehicle search was unreasonable. Five members heard the Crown’s challenge.
Chief Justice Green, authoring a three member majority judgment, found there was sufficient grounds to justify an investigative detention.
“Upon arrival at the scene, the first officer observed a man in a vehicle that roughly fit the description given in the tip,” said Green.
No one else fitting the description was present. Given the possible presence of a firearm, it was perfectly reasonable for the officer to suspect that [the accused] was connected with the alleged crime and to seek to detain him to investigate further. The safety of the public and the investigating officers was potentially engaged. However, although the detention was justified, the majority found the manner in which it was effected rendered it arbitrary:
[I]n the absence of any indication of attempted flight, uncooperativeness or threatening behavior, that could have been accomplished by requiring the [accused] to exit the vehicle and to place his hands in plain sight on the top of the vehicle, preparatory to a pat down search. It did not in the circumstances require ordering him to the ground at gunpoint, handcuffing him and placing him in the police cruiser before continuing to look for any weapons.
What began as a lawful detention became unlawful when excessive force and unnecessary detention methods were employed. The detention became arbitrary and was therefore a breach of section 9 of the Charter [para. 36].
The vehicle search could not be justified as incident to investigative detention because the detention had become unlawful. However, it was nonetheless lawful incident to arrest because police had reasonable grounds to arrest Squires before the search was conducted. These included the presence of the shotgun the officer saw. Unlike the trial judge, the majority found looking through the window with the aid of a flashlight and seeing a portion of the shotgun did not constitute a search for Charter purposes.
We rightly expect more of our police forces when conducting an investigation than for them to wander aimlessly about their business in the hopes they will stumble upon something relevant. We expect them to be purposeful, focused and methodical in what they do.
One of their chief tools in carrying out an investigation is their powers of observation. If they can exercise their powers of observation productively without physically invading any private space in which the owner or occupier has a reasonable expectation of territorial privacy and without invading informational and personal privacy, the person who has not taken the trouble to conceal the item observed can hardly complain.
To restrict the police from looking or, if they have already looked, to effectively pretend that what they saw did not exist, would unreasonably, unnecessarily and arbitrarily hamper them in effectively doing their duty. It must be remembered that a police officer needs no legal authority to approach or speak to a person sitting in a vehicle in a public space like a parking lot.
In making such an approach the officer does not have to avert his or her eyes from looking in the vehicle and observing items in plain sight. Nor does the fact that the officer was aided in his observation by the use of a flashlight through tinted glass make any difference [references omitted, paras. 53-54].
Thus, the search of the vehicle only commenced when the officer opened the door, not when he looked in the window and saw the gun – but both actions were justified as a search incident to arrest.
“Upon observing the shotgun through the window, that information, coupled with the information which initiated the attendance of the officers at the scene, and the admission by [the accused] that he had a gun in his possession, constituted reasonable and probable grounds for arrest,” said Green.
The subjective and objective components of the test were satisfied. Inasmuch as the observation of the gun on the backseat of the vehicle did not amount to a search in itself, this is not a case of attempting to use the results of the search to constitute the grounds for arrest. Furthermore, once the items were seized, the arrest followed immediately thereafter. The seizure was therefore incident to the arrest. It can therefore be justified on that basis.
The majority also concluded that the gun seizure was authorized by the plain view doctrine, which allows for the warrantless seizure of an item in plain sight of the person. It generally requires that: (1) the officer must lawfully be in a position where the evidence is plainly in view; (2) discovery of the evidence must be inadvertent; and (3) it must be apparent to the officer at the time that the observed item may be evidence of a crime or otherwise subject to seizure.
Green concluded that the firearm was discovered inadvertently – however even if it wasn’t, he opined that inadvertent discovery was not an absolute requirement.
“I am satisfied that the requirements for the establishment of the plain view doctrine should not include inadvertent discovery,” he said.
So long as the police are lawfully in a place from where the viewing can take place without invading the suspect’s zone of territorial privacy and the item is in plain view, it may be seized without a warrant. While the fact that discovery is inadvertent may reinforce the genuineness of police assertions supporting plain view, it need not be a stand-alone requirement.
s. 24(2) admissibility
Even though the gun seizure did not breach s. 8 of the Charter, the s. 9 breach resulting from using excessive force during the detention required a s. 24(2) analysis. The majority, however, would have admitted the evidence. The Crown’s appeal was allowed and a new trial ordered.
Justice Rowe, authoring his own opinion, agreed with the majority that “a police officer standing in a public place and looking through the window of a vehicle is not conducting a “search” within the meaning of <section 8> of the Charter.”
He also agreed that “where a police officer has grounds to make an arrest and where as part of a single transaction the officer first conducts a search and seizure and then carries out the arrest, the search and seizure can properly be viewed as incidental to the arrest.”
However, he did not rely on the plain view doctrine in his analysis and would not extend its scope as the majority did. Rowe concurred with the majority in allowing the Crown’s appeal, admitting the evidence under s. 24(2) and ordering a new trial.
A different view
Justice Welsh concluded that police not only used excessive force against Squires but also conducted a de facto arrest by ordering him out, handcuffing and placing him in the police car. This was performed in the absence of the required subjective belief to ground the arrest and was thus unlawful and amounted to an arbitrary detention.
“In the circumstances of this case, to require [the accused] to lie face down on the ground, and to handcuff him would amount to excessive force and an arbitrary detention as well as a de facto arrest in breach of section 9 of the Charter,” said Welsh.
The search of the vehicle incident to this unlawful arrest was therefore unreasonable. Welsh would have upheld the trial judge’s decision in excluding the evidence and dismissed the Crown appeal.