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The Opportunistic Search

  • April 14, 2019
  • Clayton Rice, K.C.

On December 11, 2015, Cst Jonathan Brault of the RCMP stopped a motor vehicle driven by Erick Robert Zolmer on Highway 16 east of Jasper, Alberta. “Are you the owner of that vehicle?” the constable asked. Zolmer said it was his mother’s. “You have tinted windows – it’s illegal – and your licence plate is not visible,” the constable continued.

Highway 16 is one of two major east-west drug courier routes through Alberta patrolled by law enforcement. Cst Brault shifted the conversation while he looked around the interior of the vehicle. “Where are you coming from and where are you heading to?” It was 10:30 in the morning. There were food wrappers in the vehicle and a tool box on the back seat. The constable asked Zolmer how long he had lived in Vancouver, British Columbia, and whether he was “okay” because he was nervous and shaking. Zolmer said he was anxious about being stopped by the police.

The officer returned to the police vehicle with Zolmer’s licence and registration. A criminal record check turned up convictions for impaired driving and aggravated assault. There was also a computer entry about a previous stop in Saskatoon, Saskatchewan, where the police wanted to call out a drug detection dog, commonly called a sniffer dog, but there were “insufficient grounds to pipeline him” and there was no backup available. Not this time! That was the “game changer” according to Cst Brault.

Cst Brault decided to detain Zolmer for a drug investigation because of the tool box in the back seat; he was nervous; it was a “third party vehicle”; and, his trip didn’t “make too much sense”. He called for backup. During the entire conversation with Zolmer, Cst Brault asked questions or made statements to him forty-four times. Only one of the questions or statements had anything to do with the tinted windows or the licence plate.

Two more constables arrived, one with a drug detection dog. The dog reacted positively during a “free air sniff”. Zolmer was arrested and the officers found cocaine, methamphetamine and a Beretta handgun in the tool box. On January 16, 2018, his evidence exclusion motion was dismissed by Justice Brian Burrows in the Court of Queen’s Bench of Alberta. He was convicted of possession of drugs for the purpose of trafficking and illegal possession of the handgun. On March 13, 2019, the Alberta Court of Appeal affirmed.

There was no dispute that Cst Brault had authority to stop Zolmer under the Traffic Safety Act, RSA 2000, c T-6 for the tinted windows and licence plate infractions. The constable also had authority to ask Zolmer for his driver’s licence, registration and insurance. In most cases, the contact between a motorist and law enforcement would involve conversation related to the exchange of documents and the time needed to write up violation tickets. But, did the exchange between Cst Brault and Zolmer jettison into an unreasonable search and seizure in violation of his rights under s 8 of the Charter of Rights?

Cst Brault testified during the exclusion motion that he asked Zolmer the string of questions for “the purpose of making conversation”. He was concerned that he might be fatigued after driving from Moose Jaw, Saskatchewan. But that came near the end of the interrogation after Cst Brault asked where he was going and how long he had lived in Vancouver. Where, then, did the traffic investigation end and a drug investigation begin? Cst Brault said the previous stop in Saskatoon triggered his suspicion. The law, however, is in an unsatisfactory state.

In the reasons on the exclusion motion reported as R v Zolmer, 2018 ABQB 38 Justice Burrows concluded, at paras 32-9, that there is no rule prohibiting a police officer from asking a motorist about details of a trip during a traffic stop. In R v MacKenzie, [2013] 3 SCR 250 the question whether the police had an objectively reasonable suspicion justifying their deployment of a sniffer dog was partly based on “the answers given by the driver to questions asked by the officer about the details of his trip.” The only exception in the Alberta case law appears to be the concurrence of Justice Connie Hunt in R v Pearson, 2012 ABCA 239 where she held, at para 87, that “[t]he Charter violations began outside the scope of [the] traffic violation when the officer’s questioning moved to criminal activity based only on a hunch.” (See also: R v Urban, 2017 ABCA 436 per curiam, at para 56)

A unanimous panel of the Alberta Court of Appeal, comprised of Justices Jack Watson, Frederica Schutz and Michelle Crighton, agreed with Justice Burrows in a per curiam opinion reported as R v Zolmer, 2019 ABCA 93. The panel held, at para 36, that it is accepted that the police may “extend their investigations opportunistically while exercising an initial lawful authority provided the extension is reasonable.” The panel went on to conclude, at para 93, that the law cannot provide “bright line guidance” for police officers about “the internal semantical contours” of conversations they have with motorists. “Analytical purity,” they wrote, “is not to be expected during roadside dynamics.”

But that is conclusory reasoning. The question then is: Why not?

There is no sound reason why the law in Alberta should not provide a bright line for police conduct, and conversations with motorists, in traffic stop investigations based upon the reason for the stop in the first place. The Alberta Court of Appeal asked the wrong question: Was a prosaic traffic stop investigation contaminated because a drug investigation was the real objective from the start? The correct question was: What was the justification for the stop? It is a question answered by the United States Supreme Court in Rodriguez v United States, 575 US _ (2015) that I discussed in a previous post to On The Wire. (See: On The Wire. Police Traffic Stops Limited By Fourth Amendment: U.S. Supreme Court Rules. May 4, 2015)

Writing for a 6-3 majority, Justice Ruth Bader Ginsberg held that the police may not extend the length of a traffic stop beyond the original purpose of the stop, at pp 5-6: “[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’ – to address the traffic violation that warranted the stop […] ‘The scope of the detention must be carefully tailored to its underlying justification.'[…] Because addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.’ […] Authority for the seizure thus ends when tasks tied to the traffic infraction are – or reasonably should have been – completed. [I]n determining the reasonable duration of a stop, ‘it [is] appropriate to examine whether the police diligently pursued [the] investigation’.”

Can the Rodriguez bright line be reasonably applied to the evidence in Zolmer? In Pearson, Justice Hunt said that the Charter violation occurred when the police embarked on a criminal investigation unrelated to the reason for the traffic stop. And in Zolmer, the Alberta Court of Appeal acknowledged, at para 42, that “a conversation might clearly become an unrelated interrogation and thus require some new foundation in law and fact.” Let’s go back to the evidence.

After the initial roadside conversation ended, Justice Burrows found, at paras 5-6, that Cst Brault returned to the police vehicle. He completed computer searches and learned that Zolmer’s driver’s licence and the vehicle registration were in order. He also completed a second search to find that Zolmer had two unrelated criminal convictions. Presumably the second search would have disclosed whether there was an outstanding arrest warrant. At that point the “mission” of the traffic stop was over. But, Cst Brault had a hunch.

Instead of issuing violation tickets under the statute, Cst Brault conducted the third computer search that had nothing to do with the “underlying justification” for the stop. And that triggered the call for backup and the Charter violation when the vehicle was searched. It was, as Cst Brault testified, a “game changer” when he learned of the previous stop in Saskatoon where the police wanted to call out a detection dog but didn’t have the backup.

I will leave you with this. There is no valid reason why the rights of Canadians should receive less protection than the rights of Americans during traffic stop investigations – particularly meandering ones. The most important sentence in Rodriguez for Fourth Amendment jurisprudence is this one: “Authority for the seizure thus ends when tasks tied to the traffic infraction are – or reasonably should have been – completed.” The most important sentence in Justice Hunt’s prescient opinion in Pearson for s. 8 jurisprudence is this one: “The Charter violations began outside the scope of [the] traffic violation, when the officer’s questioning moved to criminal activity based only on a hunch.”

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