Blue Line


July 1, 2013  By Mike Novakowski

1722 words – MR

Warrantless physical search may accompany drug dog sniff

A drug dog’s positive indication of a trunk authorized police to search the car without a warrant, Manitoba’s highest court has ruled.

In <R. v. Frieburg, 2013 MBCA 40> officers watching a residence saw the accused park a Dodge Charger across the street at 11:45 pm. She and two men got out and went in, leaving about 35 minutes later in a Chevrolet Cavalier registered to Frieburg’s mother.

Police obtained a search warrant for the residence at about 2 am but before executing it, found and stopped the Cavalier nearby at 3 am. Frieburg was arrested for possessing drugs for the purpose of trafficking and advised of her rights. Officers seized keys to both cars from her and took her to a correctional centre. A police dog sniff search around the Cavalier indicated positive for drugs. Five cell phones, $845 and a can of bear spray were found but no drugs.

A warrant was served on the residence at 3:25 am and a half pound of marijuana, two digital scales, three cell phones, score sheets and other drug paraphernalia were found. At about 4 am, a sniff search was done on the Charger. It had air fresheners on the rear-view mirror and Bounce dryer sheets in the air vents, suggesting the presence of illegal drugs. When the dog indicated the presence of drugs, officers unlocked the car and found 850 ecstasy pills in the trunk.

A Manitoba Court of Queen’s Bench judge found the Charger wasn’t being operated by Frieburg at the time of the arrest and the search occurred long after she drove it. The search wasn’t incidental to arrest, infringing <s. 8> of the Charter, and the pills were excluded as evidence under <s. 24(2)>. Frieburg was acquitted of possessing ecstasy for the purpose of trafficking.

The Crown appealed to the Manitoba Court of Appeal, arguing the judge erred in finding the Charger search breached the Charter and in excluding the evidence. The alleged mistakes made by the trial judge included issues concerning searches incidental to arrest and whether the Charger search was lawful, were among its grounds for appeal.

{Search incidental to arrest}

The Crown argued the Charger search was lawful as an incident to Frieburg’s 3 am arrest but Justice Beard, writing the court’s decision, found the arrest unlawful, invalidating the search incident to an arrest. A warrantless arrest under <s. 495(1)> of the Criminal Code imparts a two part test.

“The first part of the test requires a subjective, personal belief on the part of the arresting officer that there were reasonable grounds for the arrest and the second part requires objective justification for the subjective belief,” said Beard. “In other words, a reasonable person in the place of the arresting officer must be able to conclude that there were reasonable grounds for the arrest.”

The officers had obtained a search warrant for a home and, while waiting to execute it, decided to look for Frieburg, then stopped her car and arrested her. They testified that the operative reasons for the arrest were to optimize officer safety by keeping people away from the residence, prevent the destruction of evidence and facilitate the search warrant. These were not valid justifications, stated Beard.

(para. 23).

Nor would the court infer that the officers had the required subjective belief because police had obtained a search warrant, which would require a judicial justice be satisfied that there were reasonable grounds to believe an offence had been committed. There was no evidence as to the officers’ understanding of the relationship between obtaining a search warrant and making an arrest. The issuing of a warrant did not justify arresting Frieburg and lodging her at the correctional institute. The trial judge’s conclusion that the personal belief of police to arrest Frieburg was based on the authority of the CDSA search warrant, rather than using the warrant to support grounds for the arrest, was a factual finding the appeal court didn’t disturb.

<In this case, the issue is not whether the officers understood the law, but what they subjectively, that is, personally, believed. The law is clear that the officer must have a subjective belief that there are reasonable grounds to make the arrest. The officers, although prompted, did not give that testimony. This is not a mistake of law, but a lack of evidence. The search warrant cannot fill that evidentiary gap, in the face of the officers’ testimony of their reason for the arrest and the trial judge’s finding of fact in that regard.

For these reasons, I would find that the arrest of the accused at 3 a.m. wasn’t a lawful arrest and, therefore, I would have found that the search of the Dodge Charger on the basis that it was a search incidental to a lawful arrest at 3:00 am was an unreasonable search, contrary to s. 8 of the Charter> (paras. 28-29).

Beard also rejected the notion that the search was incidental to arrest because police had reasonable grounds to arrest Frieburg immediately before searching the Charger. In some cases, a search incidental to arrest can precede the arrest if the grounds to arrest exist at the time of the search. In this case, however, the search and arrest did not occur at the same location or as part of the same transaction, nor did the arrest immediately follow the search.

Frieburg was arrested driving the Cavalier an hour before the search of the Charger, which was parked about a mile away from the arrest location. Although the search was carried out for a valid purpose connected to arrest, it wasn’t within Frieburg’s “immediate surroundings.”

(para. 52).

{Dog searches}

Police may use a dog to sniff for drugs without a warrant provided they have reasonable grounds to suspect the presence of contraband at the place or on the person to be searched. In this case, the trial judge concluded officers had the requisite suspicion to deploy the dog to search the Charger. The issue for the appeal court was whether police had the common law authority to proceed with a physical search of the area indicated by the dog – a locked and alarmed private vehicle parked on a public street – without obtaining a search warrant.

Beard concluded that the common law principles for warrantless sniffer-dog searches includes “police authority to physically search the area indicated positive for drugs (or other items, such as explosives, depending on training) by the sniffer dogs without a warrant as being an appropriate extension of the common law regarding police powers to conduct a warrantless search for the purpose of criminal investigations.”

These common-law searches are not limited to situations of urgency.

<(T)he common law permits the police to do a physical search of the area indicated positive by the sniffer-dog for the item indicated by the sniffer-dog, in this case, drugs, without the police obtaining a search warrant. This physical search is not limited to those situations where there is evidence of imminent danger of loss, removal, destruction or disappearance of any evidence that might be found. Thus, I find that the trial judge erred in law when he found that the physical search of the trunk was a breach of the accused’s s. 8 rights because it was a warrantless search and “(t)here was an absence of evidence of imminent danger of the loss, removal, destruction or disappearance of any evidence that might be found in the Charger (para. 95)…

In this case, the police were lawfully present at the Dodge Charger, in that the Dodge Charger was parked on a public street and the police were not required to trespass on private property to access it. The search of the Dodge Charger wasn’t random or arbitrary, in that the police were executing a search warrant at 828 Dennis Street, the Dodge Charger was parked in front of and across the road from 828 Dennis Street and there was evidence to link it to that address.

The police had a reasonable suspicion that there were drugs in the Dodge Charger, so they were authorized to conduct a common law sniffer-dog search. Upon the dog making the positive indication at the trunk, the police were authorized to do a physical search of that area without obtaining a warrant.

Finally, upon opening the trunk, the police found a package. The positive indication by the sniffer-dog, together with the information that formed the reasonable suspicion leading to the deployment of the dog, provided the reasonable grounds under s. 489(2) for the police to seize the package> (paras. 98-100).

The trunk search was reasonable, the seizure of the package found therein was lawful and no <s. 8> infringement occurred. The evidence was admissible and the trial judge erred by excluding it under <s. 24(2)>.

The Crown’s appeal was allowed, Frieburg’s acquittal set aside and a new trial ordered.

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