Search of passenger's backpack in impounded vehicle breached charter: NS Court of Appeal

Illicit substance found in bag not admissible in court; passenger acquitted of charges

Search of passenger's backpack in impounded vehicle breached charter: NS Court of Appeal

Drugs obtained from a man’s backpack during a routine vehicle inventory search should be excluded as evidence because the search breached the man’s charter rights, the Nova Scotia Court of Appeal has ruled.

In R. v. Myers, 2022 NSCA 69, Luke Myers was a passenger in a truck when it was stopped by a police officer for multiple violations of the Nova Scotia Motor Vehicle Act. The officer discovered that the vehicle was unregistered and the driver had no insurance. This prompted the officer to begin an inventory search of the contents of the vehicle. An inventory search is conducted when a vehicle is impounded by police, to allow the officer an opportunity to identify and record property which the police are retaining as a result of taking control of the vehicle.

During the search, the officer opened Myers’ backpack located on the floor on the passenger side of the truck and found various prohibited drugs and drug paraphernalia. Myers was arrested and eventually convicted of two counts of possession for the purpose of trafficking.

Myers argued that the inventory search was not reasonable and constituted a violation of his rights under the Canadian Charter of Rights and Freedoms. The appeal court agreed with him, ruling that the search of Myers’ backpack was unreasonable and beyond the scope of an inventory search. The court excluded the evidence obtained from the bag and, consequently, Myers was acquitted.

Scope of inventory search

The appeal court acknowledged that police officers are authorized to impound a vehicle under the province’s motor vehicle legislation. This authority carries with it the duty and responsibility to take care of the vehicle and its contents, and to do that the police must be able to conduct an inventory of the contents, according to the court. Myers conceded that the law permitting an inventory search of a vehicle detained by police was reasonable, but he asserted that the manner by which the inventory was carried out was unreasonable.

The appeal court agreed with Myers’ contention. The court explained that the purpose of an inventory search is to document the contents of a vehicle that will be taken into possession of the police but It does not extend to personal property of occupants that will not remain in the vehicle when taken into police custody. The court further said vehicle passengers should be given the opportunity to remove their personal belongings from the vehicle before it is placed under police control.

Breach of charter right

The court emphasized that an inventory search only applies to the contents which will be remaining with the vehicle after it is taken into police control. This does not give the police unlimited right to search personal belongings unrelated to the particular investigation.

Before commencing the inventory search, Myers should have been invited to remove his bag from the truck, the court said. There was no justification to search his backpack as part of an inventory search. The court concluded that Myer’s right to be secure against unreasonable search and seizure was infringed. The drugs were discovered directly due to the beach of Myers’ charter right. Consequently, the court ruled that the evidence obtained from the backpack should be excluded.

The court asserted that unjustified searches of personal belongings of the travelling public should not be condoned. As a passenger, Myers had a distinct expectation of privacy in his closed backpack. The court said the admission of evidence obtained from Myers’ backpack would risk bringing the administration of justice into disrepute and set a poor precedent for the future use of inventory searches by police in the province.

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