Police Officers can't search on a hunch

In a recent British Columbia Supreme Court decision, R. v. Darling, [2010] B.C.J. No. 715, the court ruled drug evidence inadmissible because of an illegal search by an inexperienced police officer. The police had set up a containment zone in the hopes of catching an armed robber as he left the area. Mr. Darling was stopped as he matched the general description of the armed robber. Mr. Darling was detained and told he was being investigated for the robbery. The police officer mistakenly believed that by placing a person under investigative detention, he was entitled to search that person for evidence to implicate him in the robbery.

Mr. Justice Shabbits discussed the common-law power of a peace officer to make a lawful investigative detention and the Supreme Court of Canada decision of R. v. Mann, 2004 SCC 52. He then excluded the evidence after considering the line of inquiry for admissibility of evidence as set out in R. v. Grant, 2009 SCC 32.

35 Iacobucci J. says that the general duty of officers to protect life may in some circumstances give rise to the power to give a pat-down search incidental to an investigative detention. Such a search power does not exist as a matter of course. The officer must believe on reasonable grounds that his own safety or the safety of others is at risk. Iacobucci J. says that he disagrees with the suggestion that the power to detain for investigation endorses an incidental search in all circumstances. The officer's decision to search must be reasonably necessary in light of the totality of the circumstances. It cannot be justified.
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37 Iacobucci J. says that an investigative detention should be brief in duration and does not impose and obligation on the detained individual to answer questions posed by the police. He says the investigative detention and protective search power are to be distinguished from and arrest and its incidental power to search.
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42 I have concluded that Constable Bentley did not conduct the search for officer safety incidental to his investigative detention of Mr. Darling. I have concluded that Constable Bentley did exactly what he told Mr. Darling he would be doing - that is to say, he searched Mr. Darling for evidence that Mr. Darling had committed the robbery. He did that without having a lawful basis for arresting Mr. Darling for the robbery - he had no reasonable and probable grounds to believe that Mr. Darling was the robber.
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47 Constable Bentley was not an experienced police officer. He did not know what he was entitled to do during an investigative detention. He was of the mistaken belief that he was entitled to detain for investigative detention anybody leaving the area of the robbery that he reasonably suspected of having been being involved in the robbery, and that he was entitled to search them for evidence relating to the robbery.

48 Constable Bentley's search of Mr. Darling was conducted in a respectful and non-intimidating fashion, and Constable Bentley thought he was acting pursuant to legitimate policing powers. In that sense, at least, he was not acting in bad faith.
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50 In Grant, Chief Justice McLachlin says this:

Ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith; R. v. Jenest [1989] 1 S.C.R. 59 at page 87 per Dickson C. J.; R. v. Kokesch [1990] 3 S. C. R. 3 at pages 32-33 per Sopinka J.; R. v. Buhay 2003 SCC 30, [2003] 1 S.C.R. 631 at paragraph 59.

51 She writes that wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court disassociate itself from such conduct, and that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.
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53 The search of Mr. Darling was a result of deliberate police conduct in violation of established Charter standards. Constable Bentley ought not to have searched Mr. Darling without determining the scope of his authority to search.

54 In my opinion, the seriousness of this Charter infringing state conduct supports exclusion of the evidence.

Lack of police understanding of roadside devices and of the law leads to a Charter breach

In R. v. Costa, [2010] O.J. No. 1881, the court found a serious violation of section 8 of the Charter where the investigating officer did not have reasonable grounds to make an arrest. The officer lacked a basic understanding of the roadside device he was using and he was ignorant to the law regarding the use of roadside screening devices.

13 Detective Iancu's grounds to arrest Mr. Costa were based on his understanding of the results of the roadside breath testing, and he agreed that he would not have arrested Mr. Costa in the absence of the "F" or "fail" on that test. The issue is therefore whether he had both a subjective and objective basis to rely on the device: in the absence of reasonable grounds the arrest would be unlawful and the subsequent taking of the breath samples would be a violation of s. 8: see R. v. Mandarino, [2010] O.J. No. 856 (C.A.), upholding Thorburn J.'s decision at [2008] O.J. No. 771 (S.C.J.); and R. v. Topaltsis, [2006] O.J. No. 3181
(C.A.)
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15 On behalf of Mr. Costa, Mr. Rabinovich submits that there are three reasons to be concerned about Detective Iancu's faith in the device:
1. the officer twice indicated in his notes and repeated in his evidence that the device used to test Mr. Costa was a Drager Alcotest "740" GLC, which is not an aproved device;
2. he was unfamiliar with the error codes on the device that he was using, and was therefore unable to explain whether the errors generated by Mr. Costa's failed attempts were related to the device or not;
3. he thought he had no power to arrest someone whom he believed had a blood alcohol content of over 80 without a roadside test.
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19 The officer's mistake with the error codes is more problematic. While Detective Iancu believed the device was working properly, he also understood that the only error that could occur was due to insufficient air provided by Mr. Costa, which he understood would always display as an "E" on the screen. This was incorrect. […]

22 Detective Iancu was not knowledgeable about the device that he was using and he was incorrect in his understanding of the potential errors that could be generated. Since his assumptions were mistaken in important respects, this undermines the reliability of his evidence regarding the device.

23 I am also concerned that Detective Iancu understood that he was required by law to test every suspect with a roadside testing device, regardless of his belief that they had over 80 mg of alcohol in their system. This is simply wrong. It is well established law that where an officer reasonably believes that a person has over 80 mg of alcohol in 100 ml of blood, they may arrest the person and make a demand for a breath sample: see s. 254(3) of the Criminal Code, and see the Supreme Court of Canada to this effect in R. v. Bernshaw, [1995] 1 S.C.R. 254 and more recently in R. v. Shepherd, [2009] 2 S.C.R. 527. To be clear: there is no legal obligation to use the roadside testing device if there are grounds for an arrest and a demand: see Censoni (cited above) at para. 50.

24 I find that the cumulative effect of the errors revealed in Detective Iancu's evidence underminethe reliability of his understanding of the device. In particular, I am concerned that his incorrect understanding about the potential for error influenced his subjective belief that the device was working. Moreover, the lack of evidence before me regarding the error codes means it is impossible to know the nature of the two errors, and therefore to assess the objective reasonableness of Detective Iancu's opinion that the device was working.

25 In the result, I am not satisfied that the officer had reasonable grounds to make the arrest, and I find there was a violation of s. 8 of the Charter.

After excluding the evidence of the breath samples and finding Costa not guilty, the Judge went on to state that the crown could not have relied on the expert’s report on blood alcohol level extrapolation as they had not proved an absence of “bolus drinking”, or consuming a large quantity of alcohol shortly before being pulled over.

36 There was no evidence explaining what Mr. Hinman meant by "large quantities of alcoholic beverages", nor any evidence that might explain how long a time was meant by "shortly prior" to the incident. Similarly, there was no evidence regarding how many drinks or how much alcohol Mr. Costa would have had to consume to bring his blood alcohol content within the legal limits at the time of driving.
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40 However, in this case, I see no circumstantial evidence suggesting the absence of bolus drinking at all. There was no evidence about where Mr. Costa was coming from, how long he had been driving, and no admissible evidence about what he drank or when he had last consumed alcohol. There was further no quantification of what Mr. Costa would have had to drink in order to be at or under the legal limit. In combination, I find these factors leave what Langdon J. called an "evidentiary vacuum" about bolus drinking.

41 On the other hand, although there was no evidence of alcohol in the car, there was a strong odour of alcohol coming from the car. There was also a strong odour on Mr. Costa's breath. While I would not go so far as to say these factors provided positive evidence of recent bolus drinking, neither do they assist the Crown in showing no bolus drinking.

42 The absence of bolus drinking is an element that the Crown must prove in order to rely upon the report and sustain a conviction. Based on the evidence before me, I find I have no basis upon which to conclude or draw the inference that there was no bolus drinking. In the circumstances, the Crown has failed to meet its burden on this issue and the accused is entitled to the benefit of the doubt.