Wednesday, 27 July 2016

The police search of a woman was abusive  (Part 2)    

If you read Part 1 of this two-part series that was published immediately previous to this article; you will remember that another woman was also charged with driving her car while impaired.  She was convicted despite the fact that her bra was also removed in similar circumstances as described in this article.

Officers Qadree and Amaro stopped Ms. D'Andrade at 4:45 am on December 7th, 2014 to investigate her sobriety after they saw her swerving in her lane as she drove along Dixie Road in Mississauga, Ontario. She stopped at a red light, but stopped well beyond the crosswalk.  When the light turned green, she kept driving and swerving in her lane. The officers put on their emergency lights to pull her over. They wanted to check her sobriety. Ms. D'Andrade switched lanes, went up on the curb with both tires, came down off of the curb and stopped.

 Officer Qadree approached the driver’s side of Ms. D'Andrade’s car and spoke to her. He smelled a strong odour of alcohol coming from her breath. He asked her if she had drunk anything that night. She told him that she drank one Smirnoff Ice at her cousin’s home.

Officer Qadree formed the opinion that she had alcohol in her body and had been driving a motor vehicle. He asked her to step out of her car. D'Andrade then waited in the back of Officer Qadree’s cruiser.

He did not have an ASD so he called for one to be brought to the scene. Officer McClinchey, a female officer, arrived shortly with an ASD.

After speaking to Ms. D'Andrade, Officer Qadree made a demand on her to provide a breath sample into an approved roadside screening device (ASD). Ms. D'Andrade gave a breath sample and failed the test. Officer Qadree arrested her for driving over 80.

Officer Qadree asked Ms. D'Andrade to step out of his cruiser. He handcuffed her with her hands behind her back and handed her over to Officer McClinchey so that she could search her. Officer Qadree testified that he stood close to Officer McClinchey and watched her search Ms. D'Andrade. He described the search during his direct testimony in court as follows:

“She (Officer McClinchey) patted the accused down, made sure there’s no weapons or anything in her pockets. She didn’t have much on her. At this time I don’t recall exactly if the accused was facing the vehicle or was facing Constable McClinchey. The accused was wearing a sweater. The sweater had a, a large neck, I do recall it. And I don’t recall her taking the sweater off at all or she didn’t have any jeans. I do recall her wearing tights. It was a black tight.”

 Officer Qadree contradicted himself in cross-examination regarding whether he watched Officer McClinchey search Ms. D'Andrade. Defence counsel suggested to him that during the search he and Officer Amaro were watching the search take place. Officer Qadree responded that he did not watch the search being done.

Then he said that he may have been moving around while Officer McClinchey conducted the search. Defence counsel asked him if he “saw her do the pat down?” Officer Qadree replied “Possibly. I don’t, I don’t remember it exactly, but yes...I couldn’t have not watched it...I mean, I just handed her over to her, and yes, she was being patted down. I’m not sure if I was watching it from further, closer. I don’t – I can’t recall that”

When defence counsel reminded him that in examination-in-chief he said that he watched Officer McClinchey search Ms. D'Andrade he said “‘Cause I handed her over to her. What I’m trying to explain to you is that I don’t know exactly how she was searched.”  Then he said;  “I did not “know exactly where I was at the time of the search.” That contradicted what he said in chief that he stood close to Officer McClinchey while she searched Ms. D'Andrade.

He remembered that Ms. D'Andrade’s sweater was thick and that it fit her tightly. It looked “like it was fine fitted on her body”. He said that it was not “clinging to the body”, but agreed that “it was fairly clinging to her body”.  He did not recall whether it had a zipper. He did not remember if the sweater was taken off.

With regard to it having been unzipped, he was not “too sure”. He would not have remembered because Ms. D'Andrade would have been facing the cruiser or Officer McClinchey. He did not remember that Ms. D'Andrade’s sweater was unzipped exposing her in nothing but her bra. All he could say was that her “shirt” was not taken off. He did not remember whether Ms. D'Andrade was facing Officer McClinchey when she searched her. They were at the rear of his cruiser. He did not recall standing on the sidewalk with Officer Amaro watching Officer McClinchey search Ms. D'Andrade. Officer Qadree did not recall where Officer Amaro was during the search. 

He would have been in the area since there was no one else at the scene during the search.

Officer McClinchey agreed that unzipping Ms. D'Andrade’s sweater was not a minor incident and that it was “significant and embarrassing” to Ms. D'Andrade. However, she did not include the incident in her notes. She described the search as simply a “pat down search”. The reason was that she did not recall the unzipping the sweater being that big of an incident. This seems to contradict her testimony that it was not a minor incident.

I am always suspicious of cops whose testimony varies.

Officer McClinchey (a female officer) conducted the pat down search incident to the arrest. She and Ms. D'Andrade were standing on the road during the search. During the search Officer McClinchey unzipped Ms. D'Andrade’s sweater. Ms. D'Andrade was wearing a see-through bra and her breasts were exposed.

Ms. D'Andrade testified that Officers Qadree and Amaro were standing close by and saw everything. The officers deny that they saw anything.

At her trial, her lawyer argued that this constituted a strip search. The Crown (prosecutor) argued that the search did not qualify as a strip search which is illegal unless undertaken in extreme circumstances which didn’t apply in this case.

The defence’s Charter application stated in paragraph 5 that “This was an application to stay the proceedings, pursuant to section 24 (1) of the Canadian Charter due to a breach of section 8 of the Canadian Charter of Rights and Freedoms.

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

8. Everyone has the right to be secure against unreasonable search or seizure

The defence’s application for a dismissal of the charge also stated that the police’s search of Ms. D'Andrade was unauthorized and therefore, an illegal strip search in violation of section 8 of the Charter.

During the search of a woman while pertinent parts of her clothing is being removed while male officers are close by and watching the search is an unreasonable search as stated in the Charter.

Many years ago when I was still practicing law, I represented a client who was told to take all of his clothes off while standing in a small alcove next to the main hallway of the police station. A video camera was facing him and recording the event. The video screen was on the front desk where female officers would be able to see it.

I didn’t raise this issue at his trial because the judge dismissed the charge but we sued the officers and the police department. They settled out of court and the amount of the settlement my client got pleased him.

The Law
In R. v. Golden, the Supreme Court of Canada said that a strip search is “the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments.”

The court stated that “This definition distinguishes strip searches from less intrusive “frisk” or “pat-down” searches, which do not involve the removal of clothing.”

In Golden, the court dealt with a situation where the police pulled down the accused’s pants and his long underwear. They wanted to inspect his underwear and buttocks to look for drugs.

As an aside, it was me that brought in the law in Canada that it is illegal to insert one’s fingers into the anus of a prisoner while searching for drugs. That law came about years ago as a direct result of a speech i gave at the world’s first conference on prison medicine that was held in Ottawa, Canada. In Canadian prisons and jails they are placed in a cell with a toilet that can’t be flushed from the inside of the cell. 

 In Golden, the police wanted to examine the accused’s long johns. No one would disagree that this is an article of clothing that is private and not meant for public view. This is the context in which the Supreme Court made “undergarments” part of its definition of “strip search”.  

It follows that in order for an article of clothing to be considered to be an undergarment it must be an article of clothing that is not intended for public viewing. Obvious examples are bras, panties, boxer shorts, bikini briefs, and long underwear. However, bikini briefs are often worn by young women on public beaches.

The trial judge’s decision

The trial judge in this specific case said;

“I will now turn to the case at bar. It was minus five degrees. Ms. D'Andrade was wearing a stylish, tight, form fitting sweater, black tights and knee high boots. She was dressed up. It was a weekend night (albeit Sunday). In these circumstances, I find that whatever articles of clothing she might have been wearing under the sweater were not for public eyes. I find that such articles would possess a sufficient degree of privacy that would allow them to be classified as “undergarments” as intended by the Supreme Court in their definition of strip search.”  unquote

The judge also said;

“Consequently, I find that Officer McClinchey performed a strip search on Ms. D'Andrade when she unzipped her sweater and exposed her breasts. Once Officer McClinchey unzipped Ms. D'Andrade’s sweater it did not matter that she assumed that she was wearing a shirt underneath the sweater because she stated that she unzipped the sweater to look at the shirt that she assumed she was wearing underneath. I find that in doing this she rearranged Ms. D'Andrade’s clothing “so as to permit a visual inspection” of her undergarments, which is the definition of a strip search.” unquote

 The judge said;  

“In light of the serious infringement of privacy and personal dignity that is an inevitable consequence of a strip search, such searches are only constitutionally valid at common law where they are conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee's possession or evidence related to the reason for the arrest. In addition, the police must establish reasonable and probable grounds justifying the strip search in addition to reasonable and probable grounds justifying the arrest. Where these preconditions to conducting a strip search incident to arrest are met, it is also necessary that the strip search be conducted in a manner that does not infringe section 8 of the Charter.” unquote

I can’t imagine why Officer wanted to un-zipper the woman’s sweater when a simple pat down would suffice.

The judge said;

“In the case at bar, the search was incident to a lawful arrest. But was it reasonable to have conducted a strip search on Ms. D'Andrade? I find that it was not. In the circumstances of this case, the police did not establish reasonable and probable grounds to justify the strip search” unquote.    

The judge also said;

“In the case before me, the police fell short of proving that a strip search was necessary to ensure that Ms. D'Andrade was not concealing any weapons or other things that may pose a danger. Officer McClinchey admitted that a simple pat down search would have sufficed, but she went farther. The circumstances as outlined above did not reveal even a scintilla of information or evidence that Ms. D'Andrade posed a danger to anyone. Officer McClinchey testified that she was just doing what she routinely does. Officer Amaro’s evidence supported this practice. I also find that there was no reasonable prospect of discovering evidence of ‘over 80’ by performing the search.” unquote

With regard to strip searches in the field, the court in Golden stated that;

“Strip searches conducted in the field could only be justified where there is a demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals. The police would also have to show why it would have been unsafe to wait and conduct the strip search at the police station rather than in the field. Strip searches conducted in the field represent a much greater invasion of privacy and pose a greater threat to the detainee's bodily integrity and, for this reason, field strip searches can only be justified in exigent circumstances.” unquote

The Crown in this case I am writing about did not prove that any of these circumstances exist.

To fall within the power of search incident to a lawful arrest, a strip search could be conducted only for the purpose of discovering evidence related to Ms. D'Andrade arrest for impaired driving, and/or a possible weapon that the pat-down search revealed was secreted on her person, as there was nothing in the circumstances of the case that raised the risk that Ms. D'Andrade carried a concealed weapon.  Officer McClinchey’s search was certainly not going to reveal evidence of an excessive blood alcohol concentration in Ms. D'Andrade’s body, which is the offence for which the police arrested her. 

 In addition, there was nothing in the circumstances that raised the risk that Ms. D'Andrade was carrying a concealed weapon. In order to justify a strip search, the pat down search had to have revealed a possible weapon that was secreted on the accused’s person. Officer Qadree testified that Officer McClinchey patted down Ms. D'Andrade and made sure there’s no weapons or anything in her pockets. There was no evidence of that Ms. D'Andrade would put the officers at risk therefore there was no justifiable reason for the unnecessary strip search.

In the circumstances of this case, the officers’ evidence of the dangers of possible secreted objects under Ms. D'Andrade’s sweater that might cause harm to the officers had no air of reality. Ms. D'Andrade did not have a criminal record or outstanding charges. There was no evidence that she had ever had contact with the police or that she was dangerous in any way. She was 4 feet 11 inches tall. She weighed 117 pounds. What possible reasons would those police officers be afraid of this woman that required a search for weapons under her sweater?

Officer McClinchey testified that she normally unzips garments to look underneath them. One can say then, that it is her policy. The court in Golden recognized that “police officers have legitimate concerns that short term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees”.

 Therefore, the judge having found that Officer McClinchey performed an unreasonable strip search of Ms. D'Andrade, the judge ruled that the officer breached her rights under section 8 of the Charter. That being as it is, should the evidence of the breath tests be excluded?

The judge’s verdict

'Turning to the last factor, society has an interest in the adjudication of cases on their merits. The evidence of the breath tests is highly reliable evidence. Without this evidence the Crown’s case fails. However, I find that in the case at bar the Charter breach was so serious and the effect on Ms. D'Andrade was so significant that to admit the evidence would bring the administration of justice into disrepute."

'Therefore, the evidence of the results of the breath tests is excluded pursuant to s. 24 (2) of the Charter. There being no other evidence against Ms. D'Andrade, the charge is dismissed."

My own commentary re the verdict

Many years ago, a police officer pulled over a black man in Miami. He assumed that the car was probably stolen because he figured that a black man couldn’t afford to own such a luxurious car. He opened the car’s  trunk and saw a dead woman inside the trunk. The man was charged with murder. The judge dismissed the charge and the man was free to go. The judge said that the search was highly illegal since there was no justifiable reason for the officer to pull over the defendant and search his car. The judge said that if the police want to act in an illegal manner, they should be prepared to have their cases against the people they arrested dismissed.

The crime of murder is a serious one but when police officers act in a manner that is in conflict with the rights of citizens, it too is serious. If it becomes flagrant, then life in our society would be no different then what the citizens during the Second World War in Europe endured when they were subjected to living under the Nazi heel. 

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