IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Russell is charged with possessing a variety of illicit drugs some for the purposes of trafficking and others for personal consumption.  He does not challenge the fact that he possessed the drugs for the purposes alleged; he challenges the lawfulness of the search of his computer bag and seeks to exclude the evidence found in it.  The Crown argues that the search of the bag was pursuant to a lawful inventory search and the fruits of the search are admissible.

[2]           Shortly after midnight on August 5, 2015, police stopped Mr. Russell’s vehicle in Summerland.  Mr. Russell was on an undertaking not to be within the city limits of Summerland and arrested for breaching its terms.

[3]           The officer who arrested Mr. Russell decided to hold him in custody and take him to the Penticton police station. 

[4]           Mr. Russell’s vehicle was straddling the fog line.  The officer determined the vehicle was in an unsafe location and arranged to have it towed.

[5]           While waiting for the tow, the officer seized a wallet from the passenger floor and a computer bag from the passenger seat.  According to the officer, the items were in plain view.

[6]           The officer testified that he seized the wallet and computer bag pursuant to an RCMP policy to do an inventory search of vehicles when they are towed.  He explained that the purpose of the policy is to ensure the safekeeping of the accused’s personal possessions and avoid civil liability for the police.

[7]           When the officer returned to the police vehicle with the wallet and computer bag, he asked Mr. Russell whether there were any other items that he wanted removed from the vehicle.  Mr. Russell told the officer that he did not want anything else removed and asked that he leave his bag and wallet in the car because he trusted tow truck operators more than he trusted police.

[8]           The officer did not return the two items to Mr. Russell’s vehicle.  Instead he took them back to the police station.  At the police station, he opened the bag to do an inventory of its contents.  In it, he found a laptop, large amount of cash, bear spray, and various quantities of individually bagged drugs.

[9]           According to Mr. Russell, when he was released on the original undertaking, he was told by the police officer (the same police officer who stopped him) that he could drive through Summerland without stopping.  However, for reasons unknown, he said he chose not to remind the officer about what he said previously. 

[10]        In cross-examination, the officer denied giving the accused permission to travel through Summerland.

[11]        Mr. Russell’s counsel argued that that this was in contradiction to what the officer said in the examination-in-chief.  What he did say in the examination-in-chief was that he could not recall if he discussed with Mr. Russell driving through Summerland.  Having a discussion and actually granting permission are different and do not contradict each other.

[12]        Mr. Russell testified that before the officer removed the computer bag from his vehicle he saw him leaning into it with only his feet sticking out the driver’s door.  He opined the officer was inside the vehicle for a couple of minutes.  The accused argues that the only inference to be drawn is that the officer looked through the bag before removing it.  He also testified that he saw the officer open the trunk of the vehicle and look through it.

[13]        The officer denied both searching the bag’s contents before reaching the police station and opening Mr. Russell’s trunk.

[14]        I accept the officer’s evidence that the purpose of retrieving the bag and the wallet from the vehicle was pursuant to his belief that he was conducting a lawful inventory search.

[15]        I also accept his evidence that he did not look through the bag prior to removing it from the vehicle.  If he had located the drugs, the most logical inference would be that he would have then proceeded to arrest Mr. Russell for possessing them.  He did not.  Instead, the bag was taken back to the police station, and only before it is secured, is it searched. 

[16]        Furthermore, since the purpose of taking the bag and wallet were for inventory reasons, the officer would have been entitled to search the bag at the scene, therefore there is no reason for the officer to be untruthful about where and when the bag was searched.  

[17]        The governing principles in assessing the lawfulness of a vehicle search are concisely summarized by Mr. Justice Watt of the Ontario Court of Appeal in R v Harflett, 2016 ONCA 248, where he writes at paragraphs 11-14:

[18]        In the case at hand the first and third branches of the test are the focus of the analysis.

[19]        When a vehicle is parked in an unsafe location, section 188 of the Motor Vehicle Act authorizes police to either move the vehicle to a safe location or have it towed and stored in a safe place.  The courts in this province and others have held that from the authority to tow a vehicle carries the responsibility to take care of the vehicle and its contents, and when appropriate, conduct an inventory of the vehicle’s contents.  This type of search is known as an “inventory search”.

[20]        In R v Cooper, 2016 BCPC 259, Judge Cutler describes the rationale behind the inventory search when he writes at paragraph 16:

[21]        In the case at hand, the officer had authority to tow Mr. Russell’s vehicle because it was parked where it could interfere with the normal flow of traffic.  He also had the authority to conduct an inventory search.

[22]        Under the third branch of the Collins test, the search must be carried out in accordance with procedural and substantive requirements the law provides.

[23]        Simply because the Motor Vehicle Act provides police with the power to impound vehicles does not mean the way they exercise their discretion is above reproach.  The reasonableness of the police conduct must be judged against the totality of the circumstances.  The court must guard against abuses of police authority, even when that authority derives from statute.

[24]        In R v Nicolosi, 1998 CanLII 2006 (ON CA), [1998] OJ No 2554 (CA), the court held that although the power to impound vehicles exist, the power can be abused.  The court states at paragraphs 15-17:

[25]        In R v Harflett, 2016 ONCA 248, the court held the decision by police to call a tow truck does not always justify a decision to conduct an inventory search.  In that case, the accused was a suspended driver.  The officer decided to have his vehicle towed.  His plan was to have it towed to a nearby hotel with the accused riding with the tow truck operator.  The accused would then be in a position to pay his fines the next day and drive.

[26]        Before the vehicle was to leave, the officer performed an inventory search and found a large quantity of drugs.

[27]        The officer testified that he searches “every vehicle” for which he calls a tow truck.  He said the purpose of the search is to protect both he and the tow truck operator from liability.  Despite his intention to allow the accused to accompany the tow operator with his vehicle, he conducted an inventory search.

[28]        The court concluded that although the officer was obliged to get the vehicle off the road, he was not exercising the power to impound it, and there was no reasonable basis for the officer to undertake an inventory search of the vehicle.

[29]        In R v Martin, 2012 ONSC 2298, a case cited by the Ontario Court of Appeal in Harflett, the court held that before towing a vehicle, the officer should explore and allow the accused to exercise other reasonable options if they exist.  In that case, the accused was stopped in a fire lane.  The officer decided to have the vehicle towed. Before releasing the vehicle to the tow truck operator, the officer searched the vehicle and found a handgun.  The court found the search to be unlawful.  Justice Corbett held that not only did the police not find themselves with the parameters of the section of the Act that they relied upon to tow the vehicle, the accused was not given the opportunity to personally move the vehicle off the fire lane, find a friend to move it, or arrange for his own private tow.

[30]        Mr. Russell’s counsel argues Mr. Russell should have been given the same range of options Mr. Martin was such as: moving the vehicle himself, calling a friend to move it, or arranging his own tow.

[31]        A similar argument was raised in R v Ellis, 2016 ONCA 598.  In that case, the accused was seen walking away from a vehicle that police had observed street racing.  The vehicle was parked in a private driveway.  Despite having the keys to the vehicle the accused claimed he was not driving.  The police decided to impound the vehicle because it was abandoned.  They conducted a search and found a handgun. 

[32]        The accused argued that the search of the vehicle was unreasonable because the accused or his passenger should been given an opportunity to arrange for the car’s removal.  The court did not agree.  The court pointed out the accused was under arrest, and allowing him to move the vehicle was not an option, nor were police obligated to permit the accused to make other arrangements for moving the car.  The court said that not only was the failure to allow the accused to make other arrangements not sufficient to establish an unreasonable search, there was no evidence that the accused even requested to do so.

[33]        Like the case at hand, the failure on the part of the police to allow the accused to make other arrangements for the tow of his vehicle is not sufficient to establish that the subsequent search was unreasonable.  The stop occurred late at night, there were no other occupants in Mr. Russell’s vehicle, and the vehicle was parked in an unsafe location.  It would not have been prudent for the officer to sit at the side of the highway allowing the accused to potentially make multiple calls on the off chance that someone could come and pick up his vehicle.

[34]        Nor, like Mr. Ellis, did the accused ask to make other arrangements for his vehicle.

[35]        The accused also argues that the officer’s real motivation to tow the vehicle was to justify a search of it.  He argued that officer was familiar with his background in drug trafficking and was searching for further evidence.

[36]        I do not agree.

[37]        The officer denied that it was his intention to search for drugs and if it had been, one would have expected a much more thorough search of the vehicle and a search of the bag at the scene.  However, even if the officer did have a dual purpose, the law is clear that there is nothing improper with that as long as the search does not go beyond its proper scope.

[38]        The rationale for needing to conduct an inventory search of the contents of a computer bag at the police station are the same as those for conducting an inventory search of the car’s contents in the first place.

[39]        Finally, the accused argues that the officer had a duty to place the items back inside Mr. Russell’s vehicle, when Mr. Russell told him to do so.  In order for the officer to comply with Mr. Russell’s request, he would have had to be satisfied by doing so he would be absolved of any legal responsibility for the items.  I would not expect an officer to know the answer to that without getting some type of legal advice.  Imposing such a burden on the police is not realistic.

[40]        In summary, the search of Mr. Russell’s computer bag was authorized by law as an inventory search conducted pursuant to the police power to impound under section 188 of the Motor Vehicle Act.  The search did not violate Mr. Russell’s rights and I dismiss his application.