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The Limits of Motor Vehicle Inventory Searches

  • December 31, 2022
  • Clayton Rice, K.C.

On December 23, 2018, Luke Myers was a passenger in a truck stopped by the police in Truro, Nova Scotia, for motor vehicle infractions. The truck was uninsured and the investigating police officer arranged for it to be towed to a third party lot. The driver and Mr. Myers were detained and the officer conducted a warrantess inventory search of the truck. He opened a backpack located on the floor of the passenger side and found drugs and drug paraphernalia. Mr. Meyers made an incriminating statement to the police and was charged with two counts of possession for the purpose of trafficking. On December 23, 2020, he was convicted of both counts. He appealed. The decision on appeal provides an opportunity to discuss the parameters of the law and how it has been applied by the courts of Alberta.

1. Introduction

The law governing warrantless motor vehicle inventory searches has never been in a satisfactory state. The jurisprudence of the Supreme Court of Canada is inconsistently applied by trial judges and coherency in the appellate case law is complicated by highway traffic legislation that is not uniform among the provinces. In the leading case of R. v. Caslake, decided by the Supreme Court of Canada twenty-five years ago, Chief Justice Antonio Lamer, writing for the majority, decided not to decide whether a law authorizing inventory searches would be consistent with s. 8 of the Charter of Rights. However, he went on to hold that an inventory search does not serve a valid objective in pursuit of the ends of criminal justice. “If the police feel the need to inventory a car in their possession for their own purposes, that is one thing,” he said. “However, if they wish to tender the fruits of that inventory search into evidence at a criminal trial, the search must be conducted under some lawful authority.” (here) Although the Canadian traveling public is entitled to protection against unreasonable searches or seizures under s. 8 of the Charter, whether the right will prevail in a warrantless inventory search is fraught with a high degree of unpredictability.

2. What is an inventory search?

An inventory search will frequently be undertaken by the police in circumstances where a motor vehicle will be towed to an impound lot. The main rationale is frequently asserted to be officer safety. A cursory search of the vehicle may ensure there are no weapons or other hazards in the vehicle. Another objective that crops up in the case law is to limit the liability of police officers in the event that something goes missing from a vehicle after it is taken under police control. Many law enforcement agencies have a policy governing inventory searches or a protocol regarding how this kind of search is to be carried out. In R. v. Nicolosi (here), Justice David Doherty, writing for the Ontario Court of Appeal, held that taking a vehicle into custody entails more than simply assuming control of it. It involves “the preservation and safekeeping” of the vehicle while in the care and control of the police.

3. The Myers Case

In a ruling indexed as R. v. Myers (here), Judge A. Begin of the Nova Scotia Provincial Court characterized the issue as whether the seizures from the defendant’s backpack, and his subsequent inculpatory statement to the police, were the products of an unlawful search. There was no question that the traffic stop was validly initiated for purposes of enforcing provincial motor vehicle legislation. Mr. Myers was standing on the sidewalk next to the truck when the police officer opened the backpack and found cocaine and marijuana. The officer testified that the inventory search was stopped because of the “change in jeopardy” and the truck was towed to an RCMP detachment instead of the compound. The police then obtained a warrant to search the truck the following day.

Judge Begin was alert to the danger that an inventory search may become a “roundabout way of conducting a fishing expedition” for evidence of a crime distinct from the investigation of a motor vehicle infraction. The governing legislation was the provincial Motor Vehicle Act (here). The Crown argued that the search of the backpack was implicitly valid under s. 273(1) of the statute which authorized the officer to seize the truck and detain it until the final disposition of any prosecution for the motor vehicle violations. Judge Begin followed the ruling of the British Columbia Provincial Court in R. v. Cooper (here) where it was held that when statutory authority is granted to the police to seize and store a vehicle, “it is implicit in the legislation that the police have the duty and responsibility […] to ensure the safety of the vehicle and its contents and conduct an inventory search to that end.” Without considering Caslake, Judge Begin dismissed an evidence exclusion motion and concluded that the search was “a legal inventory search”.

On November 16, 2022, the Nova Scotia Scotia Court of Appeal reversed and excluded the seizures from the backpack and Mr. Myers’ derivative statement to the police. (here) Although the ruling in Cooper had been correctly adopted as the law in Nova Scotia, “the trial judge failed to undertake a full contextual analysis of the reasonableness of the inventory search.” It was clear from the evidence that the decision by the police to detain the vehicle arose because of the motor vehicle violations committed by the driver, not Mr. Myers. Writing for the unanimous panel, Justice C.A. Bourgeois held that the appellant “carried no liability in relation to these offences, he was simply a by-stander.”

It was the status of the appellant as a passenger or “by-stander” that distinguished Myers from the ruling of the Ontario Court of Appeal in R. v. Wint that arose from analogous facts and was considered by the trial judge. (here) In Wint, the appellant was charged with “stunt driving” under s. 172(1) of the Highway Traffic Act. (here) The police decided to impound the vehicle under statutory authority and conduct an inventory search. One of the officers opened a bag that was on the floor behind the passenger seat. The bag contained a heavy CD case and the officer was concerned it might contain a firearm. The CD case, however, did not contain a firearm but did contain small amounts of cocaine and marijuana, three cell phones, a BlackBerry and a digital scale. In upholding the ruling of the trial judge that the police did not violate the appellant’s s. 8 rights the panel stated per curiam that, “if inventory searches are to be meaningful and serve the purpose for which they are intended, the police […] must be able to search and itemize the contents of objects such as purses, wallets and bags like the one observed in this case, to determine their contents.”

Justice Bourgeois did not disagree with the statement of the law by the Wint court but went on to emphasize that “the opening of a purse (or bag) in one situation may be found to be part of a reasonable inventory search, whereas the context in another case may lead to the conclusion such action is unreasonable.” An inventory search only applies to the contents that will remain with the vehicle after it is taken into police custody and does not give the police carte blanche to search personal belongings, unrelated to the particular investigation, which the occupants may want to remove from the vehicle. The appellant ought to have been given the opportunity to remove his backpack from the truck before the inventory search was commenced. The search of the backpack therefore exceeded what was required for the inventory search and constituted a violation of s. 8 of the Charter. The drugs and paraphernalia were excluded from evidence.

The subsequent incriminating statement made by the appellant to the police was also excluded. Justice Bourgeois rejected the Crown’s argument that there was an “insufficient connection” between the Charter violation and the statement on the basis of a contextual analysis of the breach and the principles developed by the Supreme Court of Canada in cases such as R. v. Strachan, R. v. Wittwer and R. v. Mack that were succinctly summarized in the more recent ruling in R. v. Tim. (here)

4. Alberta Cases

In R. v. Russell, the police responded to a residence as a result of an assault complaint where the defendant was arrested without a warrant. (here) A set of keys was removed from his pants pocket. A GMC Denali motor vehicle was located at the property. Although the police received information from the property owner that it was abandoned, they believed the defendant had previously used it. A tow truck was called and the Denali was unlocked by the operator. An inventory search was then conducted in accordance with RCMP policy “to account for the condition of the vehicle and personal property inside.” Using one of the keys seized from the defendant, the police opened a box in the rear of the vehicle and then searched it more thoroughly at the RCMP detachment. The box contained seven handguns and various other items including a loaded magazine, cash and drugs. The search of the box was warrantless.

In a voir dire ruling that preceded Wint, Judge J. Shriar of the Alberta Provincial Court found that the detention of the defendant was arbitrary in violation of s. 9 of the Charter and the seizure of the key incidental to the detention was unlawful. The Crown therefore argued that the search of the vehicle was justified under s. 77 of the Traffic Safety Act that authorizes the removal and storage of an abandoned vehicle or a vehicle parked on private property without consent of the property owner. (here) In applying Caslake, Judge Shriar held that the statute does not authorize inventory searches and it was not proved that opening the vehicle and searching the contents was “reasonably required to remove and store the vehicle.” Therefore, the inventory search was not required for a “purpose connected with police powers” under the statute and was not authorized by law. The evidence was excluded.

In R. v. Adam, a police officer accompanied the defendant, a shooting victim, to a hospital where an EMS member handed her the defendant’s bloody clothing. (here) The officer conducted an inventory search to catalogue the defendant’s valuables “for safe keeping.” She found a flip top Juicy Fruit container that contained cocaine. A “ball of cocaine” was also found in a pocket. Judge D.M. Groves of the Alberta Provincial Court held that the seizure of the defendant’s clothing was reasonable as the constable was “in the lawful execution of her duties”. Judge Groves then went on to conclude, in applying the ruling in Wint, and citing Caslake but not as it relates to inventory searches, that the search was a “valid inventory search to itemize Adam’s valuables.”  In dismissing the defendant’s exclusion application, Judge Goves stated that “inventory searches have a valid purpose and are reasonable”. The search was therefore authorized by law.

It is difficult to discern how the search in Adam was authorized by law. This was not a case involving construction of a statutory provision. The defendant was not under arrest at the time of the search so the common law doctrine of search incidental to arrest was not in play. It was explicitly accepted that the officer conducted an “inventory check” for purposes of “safe keeping.” It would appear, then, that Judge Groves failed to correctly consider the Caslake requirement of “lawful authority” and Adam is therefore wrongly decided. To meet the test of reasonableness, an inventory search must be predicated on some other lawful authority. An inventory search is not “lawful authority” in and of itself for constitutional purposes.

More recently, in R. v. Bugle, the police initiated a traffic stop of a vehicle driven by the defendant because the licence plate did not match the vehicle. (here) The vehicle accelerated and eventually lost control and collided with a barrier. The defendant, who was not the owner, was taken to a hospital. The police searched the vehicle for documents to establish ownership in order to complete “collision reports”, a duty imposed by the Traffic Safety Act. The fruits of the search included drugs and firearms. The officer who conducted the search testified that he did not do an additional inventory search because he had done a search. “I did not need another inventory search,” he said.

In a voir dire ruling on a s. 8 motion, Judge A.A. Fradsham of the Alberta Provincial Court rejected the Crown’s argument that the rationale in Nicolosi is applicable to s. 70 of the Alberta statute. As I mentioned previously, it was held in Nicolosi that the authority under the Ontario statute to “take the vehicle into the custody of the law” includes a responsibility to keep impounded property safe and itemizing “visible property” is consistent with that responsibility. (here) The Crown submitted in Bugle that the statutory obligation imposed on a peace officer to provide reports to the Registrar “respecting accidents involving vehicles” includes a responsibility to obtain the requisite information. Entering a vehicle to search for that information is consistent with that responsibility. Judge Fradsham rejected the argument, without citing Caslake, because searching the vehicle was “but one of several ways to locate the information” and “reasonable efforts” to obtain the information does not include violating Charter rights. An evidence exclusion order was granted.

It was unnecessary for Judge Fradsham to consider Caslake in detail given his extensive treatment of Nicolosi and the related findings of fact. In Bugle, the officer was never engaged in an inventory search. He began the search looking for documents related to ownership of the vehicle and, “[i]n less than a minute, the search became part of a drug investigation in which [the officer] was specifically looking for illegal substances.” Judge Fradsham therefore concluded that the law relating to inventory searches was not applicable. Although the treatment of Nicolosi is obiter dicta, it is important to emphasize that Judge Fradsham’s comments were made in response to the Crown’s submission that the seizure of the motor vehicle under s. 173(1)(b) of the statute “completely eliminated any reasonable expectation of privacy Mr. Bugle might have held in relation to the motor vehicle” and he therefore lacked standing to bring a s. 8 Charter application.

Judge Fradsham reasoned that the Nicolosi court, in dealing with an inventory search under the Ontario statute, went no further than saying it did “not see how the appellant can establish a reasonable expectation of privacy with respect to any of the contents of the vehicle which were plainly visible upon entering the vehicle.” Therefore, Nicolosi does not establish that “the vehicle seizure provisions of provincial legislation eliminate all reasonable expectation of privacy with respect to the entirety of the contents of the seized vehicle.” Whether the Nicolosi limitation of plain visibility has been eliminated by the more expansive ruling in Wint remains an open question in Alberta as Wint was not considered in Bugle. Although Judge Groves, in Adam, accepted Wint as correctly decided, the issue was not considered by the Alberta Court of Appeal in R. v. Bjornson because the trial judge’s finding that the inventory search was “valid” was not appealed. (here)

5. Conclusion

Although express consideration of the Caslake doctrine is inconsistent throughout the case law, it is clearly established in Charter jurisprudence that the police may conduct an inventory search of a vehicle for their own purposes but the search must be conducted under some other lawful authority if the state seeks to enter the fruits of an inventory search into evidence at a trial. Where a vehicle is impounded for a provincial traffic violation, the parameters of the inventory search have been expanded in Wint to include itemizing the contents of purses, wallets and bags. An inventory search is not restricted to only cataloguing items in plain view. To these general principles may now be added the Myers limitation that statutory duties imposed on the police by provincial statute are not without boundaries. A statutory duty to seize a vehicle or make a collision report does not authorize a carte blanche search. That may be another way of saying that an inventory search that exceeds statutory authority would be unreasonable under s. 8 of the Charter. In either case, the Myers limitation is an overdue development in search and seizure law that protects all Canadians against the use of traffic safety investigations as a pretext for opportunistic fishing expeditions.

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