Court File and Parties
COURT FILE NO.: CJ8557 DATE: 2016-08-25 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – ROBERT QUINN Applicant
Counsel: Leila Mehkeri, for the Crown Corbin Cawkell, for the Applicant
HEARD: August 22, 23, 24, 25, 2016
The Honourable Justice C.D. Braid
REASONS ON PRETRIAL APPLICATION
I. OVERVIEW
[1] Early one morning, Robert Quinn went to a construction worksite carrying a duffel bag. Quinn went to work as a bricklayer. During a late morning break, Quinn moved the duffel bag to a garage area in an adjacent lot to where he was working. He returned to work on the back of a house that was being built on the next lot. Quinn could not see the bag or the garage from where he was working.
[2] While Quinn was working at the back of the house, police arrested him on two outstanding warrants that had been obtained by another police force. An officer seized the duffel bag from the garage, searched it, and found a loaded handgun.
[3] At trial, Quinn challenges the search of that bag and seeks the exclusion of that evidence.
[4] This case raises the following issues: Was the search of the duffel bag a search incident to arrest? More specifically, can the search be justified for the purpose of ensuring police and public safety?
II. STATEMENT OF FACTS
[5] In May of 2015, Cst. Jesse Tamayo of the Waterloo Regional Police received information from two informants that Quinn was in possession of a .357 magnum revolver. The information was that Quinn kept the handgun at a residence at 1 Westview Court, in the town of Floradale; if the gun was not stored at the residence, Quinn would keep it on his person.
[6] Cst. Tamayo commenced an investigation. He learned that Quinn was wanted on two outstanding warrants from the O.P.P. in Kawartha Lakes for the offences of assault; break and enter; and possession and production of marijuana. Cst. Tamayo spoke to the O.P.P. and confirmed that, if Quinn was arrested on the warrants, the O.P.P. would pick Quinn up to return him to their jurisdiction.
[7] On the morning of May 28, 2015, Cst. Joseph Morelli was part of a team of officers who attended a briefing. The officers were told that there were O.P.P. warrants for Quinn’s arrest. Cst. Tamayo advised the officers about Quinn’s criminal history and that he had received information that Quinn was in possession of a handgun.
[8] The Waterloo Regional Police began conducting surveillance on Quinn at the Floradale residence. Just after 6:30am, Quinn was observed leaving the residence in a vehicle and being driven to a parking lot in Waterloo. Cst. Morelli observed Quinn getting into a second motor vehicle and carrying a bag.
[9] Quinn was followed to a construction site on Ludolph St. in Kitchener. New homes were being built in the area, and were at various stages of construction. Various tradespeople were working in the area. Quinn was working as a bricklayer on a new set of townhomes. Quinn was seen working on scaffolding at the back of a townhouse at lot 99.
[10] While the officers were conducting surveillance, Cst. Tamayo drafted an Information to Obtain in support of an application for a warrant to search the Floradale residence. The warrant was being sought to search for a handgun. The application was submitted to the court.
[11] At 11:40am, Cst. Morelli observed Quinn walk in the narrow space between lots 98 and 99. Quinn carried a bag to the garage area of lot 98. He then returned to the original work location, retrieved a black jacket and again put it into the garage at lot 98. He left the garage and returned to the work location at the back of lot 99. The garage at lot 98 was open at the front and did not appear to have a door on it.
[12] The Emergency Response Unit had profiled Quinn as capable of serious bodily harm or death due to the information of possible possession of a firearm and his past criminal history which included violent criminal offences. As a result of this background information, this was considered a high-risk arrest. At 3:21pm, a team of five ERU officers approached Quinn at the back of lot 98 from opposite directions. The officers had their weapons drawn.
[13] Cst. Nathan Robinson arrested Quinn on the strength of the O.P.P. warrants and conducted a brief pat-down search for anything that might hurt officers. He found 4.8 grams of marijuana in Quinn’s sock. Cst. Robinson also seized Quinn’s hard hat, cellphone, cigarettes and lighter. These were turned over to Cst. Morelli. Quinn was cooperative when he was arrested. He was taken to a police cruiser to be transported to the station. Officers read him his rights to counsel and caution.
[14] During the surveillance that morning, officers had observed another male drive Quinn to the construction site. Cst. Gerber and Cst. Morelli spoke to this male, who was identified as Connor Johnston. Johnston pointed out Quinn’s belongings, a duffel bag and a black jacket, which were in the garage at lot 98. Johnston told the officers that he hardly knew Quinn; that they had been working on the job site a couple of days together; and that it was only the first or second day that they had driven to work together.
[15] Cst. Place testified that he was fairly confident that the Waterloo Regional Police policy requires officers to take reasonable steps to ensure that, when a person is arrested, their property is secured in some fashion either by police or someone else. Cst. Morelli also stated that he believed he had a responsibility to secure personal property of arrested persons.
[16] In this case, the police did not feel comfortable leaving any of Quinn’s personal property with Johnston as he barely knew Quinn. Cst. Place also acknowledged that he would not have turned over the bag before searching it because of the circumstances of the firearms investigation.
[17] Officers located the CCM duffel bag in the garage. Cst. Morelli seized the duffel bag as part of a search incident to arrest and to secure his property for transport. When he lifted the bag, he noticed that it felt heavier than clothing. It never occurred to Cst. Morelli that someone would bring a firearm to the workplace.
[18] Cst. Morelli gave two principal reasons for searching the bag: i. To ensure that the contents of the bag were safe, since the bag was going to be sent with Quinn to the cellblock area; and ii. To look for evidence regarding the information that Quinn was possibly in possession of a firearm.
[19] Cst. Morelli and Cst. Place both testified about their standard practice of searching personal belongings when they are sent with an arrested person. The officers expressed concerns that property should be searched before it is sent to travel with an arrested person to a police station, custodial facility, or court. The officers stated that they wanted to ensure that there were no weapons, firearms, drugs, volatile substances or other things that would be dangerous to court staff. In addition, they intended to note anything of value to ensure that valuables were not taken. Cst. Morelli stated that the majority of firearms that he has dealt with have been loaded, so he would be remiss if he did not search Quinn’s personal belongings when they were to be transported with him.
[20] Cst. Morelli put the bag in the hatch area of his vehicle. When he opened the bag, he initially saw clothing. As he searched further, he found a loaded .357 magnum revolver that was wrapped in two or three white plastic bags. All identifiers, including the manufacturer’s symbol and the serial numbers, appeared to be ground off the revolver. Four live rounds were in the cylinder. There was no safety mechanism on the gun.
[21] Cst. Morelli testified that he did not have reasonable grounds to believe that the bag would contain a firearm. He acknowledged that he would not have been able to apply for a warrant to search the bag.
[22] At 3:28pm, Quinn was placed in a police cruiser. As he was being transported to the police station at 3:30pm, Cst. Morelli searched the duffel bag and found the handgun. The officer who was driving Quinn in the police cruiser was asked to return. At 3:34pm, Quinn was arrested on firearms offences.
[23] Within minutes of Quinn’s arrest, Cst. Tamayo attended at the courthouse and learned that the search warrant for the Floradale residence had been authorized. The officers decided not to execute that search warrant because the gun had been located.
[24] Later that day, Cst. Morelli and other officers went to the Floradale residence. Cst. Morelli spoke to Krista Freeman, who was renting the residence. Freeman stated that Quinn had resided at the residence for two weeks previously; left; and then had returned to stay for one and a half weeks. She told police that there was a marijuana grow operation in the basement of the house, and she said that she wanted Quinn and his things out of her house. Freeman gave her consent to search the residence. Police seized 51 small marijuana plants and other evidence related to a possible credit card fraud. No charges were laid arising from the evidence that was seized from that consent search.
[25] The O.P.P. did not pick up Quinn immediately after the arrest warrants were executed. On June 20, 2015, the O.P.P. obtained a judge’s order to transport Quinn to the other jurisdiction. Cst. Morelli explained that, when a person is arrested on new charges, he is brought before the court in the local jurisdiction and a hold is placed on him in case he is released. A judge’s order would be obtained to bring him before the courts in another jurisdiction. No evidence was called regarding the reason for the two-week delay in bringing Quinn before the court in the other jurisdiction.
[26] Quinn denies that the duffel bag is his property. He did not call any evidence on this application.
III. ANALYSIS
A. Was the search of the duffel bag a search incident to arrest?
[27] Because this was a warrantless search, the Crown has the burden of showing, on a balance of probabilities, that the search was reasonable. In order to be reasonable, searches must be authorized by law: R. v. Caslake, [1998] 1 S.C.R. 51. The Crown is relying on the common law power of search incident to arrest to justify the search of the duffel bag.
[28] Quinn was arrested on the strength of the O.P.P. arrest warrants. Defence counsel has withdrawn his request to exclude evidence pursuant to s.9 of the Charter and concedes that the arrest was lawful.
[29] For a search to be "truly incidental" to the arrest, the police must be attempting to achieve some valid purpose connected to the arrest. The three main purposes connected to an arrest are to ensure: i. The safety of the police and public; ii. The protection of evidence from destruction at the hands of the arrested person or others; and iii. The discovery of evidence which can be used at the arrested person's trial. Caslake; R. v. Fearon, [2014] 3 S.C.R. 621
[30] The permissible scope of searches incident to arrest will be affected by the particular circumstances of the particular arrest. The courts will rarely be able to establish any categorical limit applicable to all arrests and all purposes incidental to them: Fearon.
[31] The police do not need to have reasonable and probable grounds to search a person’s property incident to arrest. However, they must subjectively have some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. Delay and distance do not automatically preclude a search from being incidental to arrest, but they may cause the court to draw a negative inference. That inference may be rebutted by a proper explanation: Caslake.
[32] Search incident to arrest is not limited to items on the accused’s person. Police may search anything in an arrested person’s “possession” or “immediate surroundings” to guarantee the safety of the police and the accused, prevent the prisoner's escape or provide evidence against him or her: Cloutier v. Langois, [1990] S.C.J. No. 10.
[33] In this case, I find that Quinn’s duffel bag was in his personal possession throughout the day. Quinn was observed to carry the duffel bag in the garage area of lot 98. Quinn was arrested in the rear part of the houses under construction and his bag was located in the garage area of the next house. The distance between Quinn and the duffel bag does not preclude a search of the bag incident to arrest, so long as there is a valid purpose connected to the arrest.
[34] The Crown submits that the valid purpose was that of officer and public safety. This issue is discussed in more detail below.
B. Was the search conducted to ensure the safety of the police and the public?
[35] Police may search incident to arrest for protection of the police and the public. This often relates to a search for weapons that could be used by the arrested person to commit violence or attempt escape.
[36] Defence counsel argues that, in this case, Quinn was unable to access any weapon in the duffel bag that was on the other side of a building. He was in custody and being transported to the police station. Therefore, the contents of the bag did not pose a threat to the police or the public.
[37] The Crown relies on the case of R. v. Golub, 34 O.R. (3d) 743 (Ont.C.A.), to suggest that the right to search incident to arrest is dependent upon the circumstances. In Golub, the police had good reason to believe that a loaded sub-machine gun was still in an apartment after the arrest of Mr. Golub, and that other individuals may still be in the apartment with access to the firearm. The reasons for the search incident to arrest, and the area searched, were tied to the reasons for the arrest of the accused person. The Ontario Court of Appeal upheld the search of Golub’s residence as being a proper search incident to arrest.
[38] If the circumstances of an arrest give rise to a legitimate cause for concern with respect to the safety of those at the scene, reasonable steps to allay that concern may be taken. The nature of the apprehended risk, the potential consequences of not taking protective measures, the availability of alternative measures, and the likelihood of the contemplated danger actually existing, must all be considered. The officers making this assessment must, of course, do so on the spot with no time for careful reflection: Golub.
[39] In Golub, there were compelling exigent circumstances that permitted the police to enter and search a residence, which attracts a high expectation of privacy. Although the duffel bag did not present any exigent circumstances in this case, there are facts in this case that support the seizure and subsequent search of the bag.
a) Were the police entitled to seize the bag?
[40] Defence counsel argues that Cst. Morelli could have taken the duffel bag, placed it in the back of his cruiser and applied for a search warrant. It is not the seizing of the bag that is at issue; rather, it is the search of the bag that is challenged. Defence counsel acknowledges that the police had the right to preserve Quinn’s personal property but argue that police did not have the right to look in the bag.
[41] Police had a reasonable suspicion, based on the particular circumstances of the arrest, that Quinn was in possession of a handgun in a duffel bag at a construction site. This created a legitimate cause for concern justifying seizure of the bag. Even though the bag was not immediately beside Quinn at the time of his arrest, the Crown has provided an explanation. I am satisfied that the distance and the factors in this case do not preclude the search being incidental to the arrest of Quinn.
[42] In this case, the police had received information that Quinn kept the handgun in the house in Floradale or on his person. It is, quite simply, splitting hairs to suggest that “on his person” could not mean the gun could be in his bag. Cst. Morelli stated that he did not think someone would bring a gun to a construction site. That said, the officers believed Quinn had a violent history and could be in possession of a handgun. It would have been negligent for the officers to leave the construction site without securing the bag in some fashion. To do otherwise would be a dereliction of their duty to protect the public.
b) Were the police entitled to search the bag?
[43] There is no question that, had the bag been at Quinn’s feet, the police could have searched the bag incident to arrest for safety reasons. The right to search the bag continues even if the arrested party is in handcuffs and under the control of the police. The fact that the bag was not within arm’s reach of Quinn is what sets this case apart from the usual search incident to arrest scenario.
[44] When police arrest persons in a public area, the arrested party loses control over their personal belongings at the scene of the arrest. Police frequently transport personal items with the arrested party into custody.
[45] Cst. Morelli stated that he seized the duffel bag because it belonged to Quinn and he wished to transport it with him. The police observed Quinn bring the bag to the job site and move the bag during the day. I find that it was reasonable for the police to believe that the duffel bag was part of Quinn’s personal possessions.
[46] Once the bag was taken into police custody as part of Quinn’s arrest, I find that it was proper for police to search the bag for officer safety reasons. It would be impractical to suggest that an officer should transport the bag without looking in it. Courts have repeatedly articulated the right of officers to search for weapons or other dangerous items when taking a person into custody. In my view, this would include the right to search the possessions that are being transported with the arrested person.
[47] The police had information about Quinn’s violent criminal history and had information that he may be in possession of a handgun. The police did not require reasonable grounds to believe that there was a gun in the duffel bag before searching the bag for safety reasons.
[48] Cst. Morelli testified that it would be unsafe to transport personal property with an arrested person without first ensuring that the contents of the personal property are safe. Weapons or volatile items are examples of items that would be unsafe to handle. I find that these legitimate concerns necessitated the search of the duffel bag.
[49] Cst. Morelli testified that he searched the bag for safety reasons, but he was also looking for evidence regarding the information that Quinn was possibly in possession of a firearm. This was an improper purpose as it was not related to the reasons for arrest. Even though the officer had this secondary purpose in mind, it does not negate the valid grounds for the search incident to arrest.
[50] I find that, once police seized the duffel bag, it was searched for officer safety. The search was lawfully incident to the arrest of Quinn and was reasonable. It did not violate s.8 of the Charter.
C. Analysis under s.24(2) of the Charter
[51] I have found that the search of the duffel bag did not violate Quinn’s s.8 rights. If I am wrong in my analysis, I would still dismiss the application to exclude the evidence.
[52] In R. v. Grant, [2009] 2 S.C.R. 353, the Supreme Court of Canada set out a three-part test when considering a remedy under s.24(2) of the Charter: i. Seriousness of the Charter-infringing state conduct; ii. Impact upon the Charter-protected interests of the accused; and iii. Society’s interest in having criminal matters adjudicated on their merits.
i. Seriousness of the Charter-infringing state conduct
[53] Defence counsel argues that the conduct of the police was abusive. He argues that the police not only illegally searched the duffel bag, they also illegally searched Quinn’s house. I reject this argument. There was a consent search of the house that is not relevant to the search of the duffel bag.
[54] I find that the police acted in good faith. Police have an obligation to protect the safety of individuals at the scene of arrest and other officers. Cst. Morelli believed that he had to bring Quinn’s property along with him, but needed to search the bag to ensure nothing harmful was contained therein. The realities of the situation must be acknowledged. The situation was evolving quickly.
[55] Defence counsel argues that Cst. Morelli should have put the duffel bag into his trunk and not searched it. The Waterloo Regional Police could have searched the house, not found the gun and then applied for a warrant to search the duffel bag. This ignores the practical reality of the safety of the bag and where it is being stored.
[56] I find that Quinn had an extremely low expectation of privacy in the duffel bag. The duffel bag was in an open area at a worksite. Other workers had access to the area. Most importantly, Quinn has denied possession of the duffel bag and has not called any evidence to assert an expectation of privacy in the bag.
[57] The police had safety concerns relating to the possible possession of a firearm. I find that the officers acted in good faith with respect to the seizing and search of the duffel bag. The search was conducted in a reasonable manner. Almost contemporaneous to searching the duffel bag, the police applied for and obtained a search warrant to search Quinn’s residence for a firearm. If there was a breach, I put the seriousness of any Charter infringement at the low end.
ii. Impact upon the Charter-protected interests of the accused
[58] As noted above, Quinn had a low expectation of privacy in the bag. As a result, any breach would not have a serious impact on Quinn’s Charter-protected interests.
iii. Society’s interest in having criminal matters adjudicated on their merits
[59] In dealing with the third factor of the Grant analysis, it is important to note that all of the charges arise out of the seizure of the loaded prohibited firearm. The evidence is reliable. In addition, there is a strong public interest in the prosecution of the possession of a loaded prohibited firearm. Society has an expectation that matters involving firearms should be adjudicated on their merits. I am satisfied that, if the evidence found in the duffel bag is excluded, there would be a negative impact on the administration of justice.
[60] This is not one of those clearest of cases where the court should exclude the evidence. To do so would bring the administration of justice into disrepute.
III. CONCLUSION
[61] In the result, the application to exclude evidence is dismissed.
Braid J.