The United States Court of Appeals for the Fourth Circuit recently considered a case involving the search of a hotel room and the seizure of a cellular telephone as an incident to the arrest of a suspected narcotics distributor. The search was unreasonable because the area searched was not within the immediate control of the person arrested. The opinion presents an opportunity to compare some core aspects of the jurisprudence of the United States Supreme Court and the Supreme Court of Canada.

1. Introduction

On June 24, 2024, the United States Court of Appeals for the Fourth Circuit, at Richmond, Virginia, released the unanimous opinion in United States v. Quentin Lowell Horsley, No. 22-4671, holding that the district court erred in its failure to suppress evidence obtained from a cellphone seized by the police from a hotel room where Mr. Horsley was arrested. (here) He asserted that the seizures of the cellphones (only one of which was introduced at trial) were warrantless and did not fall within the exception of search incident to arrest. The conviction was nonetheless affirmed although the Fourth Circuit agreed that the district court “clearly erred” in ruling the cellphone was properly seized incident to arrest. The error was harmless given the “unchallenged evidence” that Mr. Horsley was a dealer and mid-level distributor of narcotics in the area around Lynchburg, Virginia. Two of his associates testified for the government and other “considerable evidence” included controlled buys conducted by informants, text messages extracted from cellphones, kilograms of cocaine, heroin and methamphetamine, cash and a ledger of drug transactions.

2. The Horsley Opinion

The Fourth Amendment to the Constitution of the United States protects against unreasonable search and seizure. A search without a warrant is invalid unless it falls under an exception to the warrant requirement of the Fourth Amendment. One of the exceptions is search incident to arrest which provides that, when the police have probable cause to make an arrest, they may search the person and the area within his or her immediate control. (here and here) In New York v. Belton, the rationale underpinning the exception was expressed as the need to remove any weapons and prevent the concealment or destruction of evidence. (here) More recently, in Arizona v. Gant, the United States Supreme Court held, “If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.” (here) The relevant question is therefore whether a defendant could have accessed an item at the time of the search.

In Horsley, the defendant was arrested and handcuffed when he answered the door to his hotel room. He was moved into the room and positioned by a queen size bed. The contested cellphone was on a table on the opposite side of the bed. The table was, “two to three feet from the edge of the bed.” Several marshals were in the room. One of the officers testified that the defendant, “couldn’t reach because he was in handcuffs.” The argument devolved to whether the cellphone was within Mr. Horsley’s immediate control. Judge Stephanie Thacker concluded that, even if the government was correct that the defendant could ordinarily have reached the cellphone with “no more than a few steps to go around the bed or a linear high-step or jump to get on top of (and quickly across) it,” he would still have to, “hurdle […] and break past multiple law enforcement officers before he even had a chance to twist around and seize the phone with cuffed hands.” The evidence compelled the conclusion that Mr. Horsley was secured and not within reaching distance of the cellphone. “The need to perform acrobatics to reach some object manifestly puts that object out of reach,” Judge Thacker said.

3. Canadian Jurisprudence

The right to be secure against unreasonable search and seizure is contained in s. 8 of the Canadian Charter of Rights and Freedoms. The most recent opinion of the Supreme Court of Canada on the doctrine of search incident to arrest, in the context of an arrest in a home, is the split 5-4 ruling in R. v. Stairs. (here) I will use the opinion in Stairs to highlight the influence of Fourth Amendment jurisprudence on s. 8 of the Charter.

(a) The Arrest and Search

The police responded to a 911 caller who reported seeing a man violently hitting a woman in a car. The suspect vehicle was located in the driveway of an unknown house. The police knocked on the door and announced their presence. No one answered. Fearing for the woman’s safety, the police entered the house. A woman with fresh injuries to her face came up the basement stairs. Mr. Stairs did not follow but ran past the bottom of the staircase and barricaded himself in the laundry room where he was arrested. The police then conducted a “visual clearing search” of the basement living room area from which the woman and Mr. Stairs had emerged. The purpose of the search was, “to ensure that nobody else was present and that there were no hazards or weapons sitting out in the open.” During the search, the police saw a clear container and a plastic bag in plain view containing methamphetamine. Mr. Stairs was charged with possession for the purpose of trafficking, assault and breach of probation. He was convicted at trial.

(b) The Pre-Trial Motion and Appeal

Mr. Stairs initiated a pre-trial motion for the exclusion of evidence that was dismissed by Justice Kendra Coats in the Ontario Superior Court of Justice. (here) She concluded that the search incident to arrest had a valid objective – to ensure no one else was in the house and that other hazards were not present. The objective was reasonable because Mr. Stairs and the woman had come from the living room area of the basement and the officers could not fully see into it as they descended the stairs. An appeal to the Ontario Court of Appeal turned on whether the rule in R. v. MacDonald was controlling where the Supreme Court of Canada held the police needed reasonable grounds to believe there was an imminent threat to public or police safety in order to enter and search a home. (here) In a split 2-1 opinion, the majority distinguished MacDonald on the basis that the search in Stairs was incident to a lawful arrest and a search of the surrounding area will be valid if the purpose of the search was a valid law enforcement objective connected to the arrest and the purpose was objectively reasonable. The basement search met that standard. (here)

(c) A Divided Supreme Court

Writing for the majority, Justice Michael Moldaver held that where the area searched incident to arrest in a home is outside the arrested person’s physical control at the time of arrest, the common law standard of search incident to arrest must be modified in two ways. First, the police must have reason to suspect there is a safety risk to the police, the arrested person or the public. Reasonable suspicion is a higher standard than the one at common law. Second, the police must tailor their searches incident to arrest in a home to ensure they respect the heightened privacy interests that are implicated. The search incident to arrest power only permits the police to search the surrounding area of the arrest. The basement search met the standard of reasonable suspicion particularly in the often volatile environment of domestic assault investigations. It was open to the trial judge to conclude that society’s interest in effective law enforcement should prevail over Mr. Stairs’ privacy interest in the basement living room.

Justice Moldaver relied on two opinions of the United States Supreme Court in holding that, when the police, “go outside the zone of physical control”, the standard must be raised to reasonable suspicion. In the landmark opinion in Chimel v. California, followed by the Fourth Circuit in Horsley and linked above, the United States Supreme Court held that, in a situation involving an arrest in a home, the search incident to arrest power permits the police to search an arrestee’s person and the area within his immediate control. And in Maryland v. Buie, the same court held the police may engage in a “protective sweep” of a home after an arrest when there is reasonable suspicion of danger. A protective sweep is limited to a cursory inspection of places where a person may be found and may last no longer than necessary to dispel the suspicion of danger. (here) It is important, however, that Justice Byron White emphasized in Buie that a protective sweep must be based on, “specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.”

Disagreement about the existence of particularized facts sharply divided the Stairs court. In dissent, Justice Andromache Karakatsanis would not have followed the American jurisprudence and the distinction between, “areas inside and outside the arrested person’s physical control”. The Canadian jurisprudence has, “always been framed as the authority to search the person arrested and their immediate surroundings,” she said. “The distinction based on a zone inside the arrested person’s control was not argued, its adoption is unnecessary, and it complicates the search incident to arrest framework.” Here, the search was neither subjectively nor objectively reasonable. On the question whether the search was subjectively reasonable, the police only expressed a generalized concern about weapons or people that might be found, “in a situation like this.” Nor was the search objectively reasonable. With Mr. Stairs in handcuffs, the complainant upstairs with another officer, and no sign of weapons or other people, there was no apparent safety threat.

4. Conclusion

What, then, is the state of Canadian jurisprudence in the post-Stairs world? I will leave you with this summary by Justice Moldaver. A warrantless search of a home incident to a lawful arrest will comply with s. 8 of the Charter if these requirements are met. First, where the area searched is within the arrested person’s physical control at the time of the arrest, the common law standard applies. The common law standard permits the police to search an arrested person and the surrounding area of the arrest for a valid law enforcement purpose including safety, evidence preservation and evidence discovery. Second, where the area searched is outside the arrested person’s physical control at the time of the arrest but the area is sufficiently proximate to the arrest: (a) the police must have reasonable suspicion that the search will further the objective of police and public safety, including the safety of the defendant; and, (b) the nature and extent of the search must be tailored to the purpose of the search and the heightened privacy interests in the home. And what happened to Quentin Lowell Horsley, you ask? Oh, he was sentenced to thirty years imprisonment. (here)