Opening a fanny pack and looking inside, rather than patting it down first, was a reasonable response during an investigative detention for a weapons offence, Manitoba’s highest court has held. In R. v. McKenzie, 2022 MBCA 3, two police officers in an alley saw a man jogging through a back yard. The man was clenching the left side of his body with his elbow. Thinking the man might be injured, one of the officers called out to him and asked, “Are you okay?” When the officer made eye contact with the man, the officer recognized McKenzie from police intelligence reports as a long-time member of a street gang who was known to carry a weapon.
McKenzie appeared startled or frightened at seeing the police. He immediately increased his pace to a full out sprint. One of the officers, who had extensive training and experience with weapons offences, decided to detain McKenzie to investigate. The officer believed McKenzie was attempting to conceal a weapon between his left arm and his body.
The officer yelled at McKenzie to stop, but he didn’t comply and a short foot pursuit ensued. During the chase, McKenzie’s jacket was open, and the officer observed a fanny pack. The officer caught McKenzie and pinned him against the wall of a house. He observed that the zipper to the fanny pack was about 75 per cent unzipped. The officer lifted the flap on the fanny pack to fully open it, shone his flashlight and immediately observed a handgun. McKenzie was handcuffed and arrested for possessing the firearm. When McKenzie’s jacket was searched, police found fentanyl, methamphetamine and other items indicative of drug trafficking. The firearm was loaded and stolen.
At McKenzie’s trial in the Manitoba Court of Queen’s Bench, the judge found the investigative detention lawful. What the officer saw, along with his knowledge and training, provided the necessary reasonable suspicion to justify the investigative detention. As for the search of the fanny pack, it was reasonably necessary to eliminate an imminent threat to the officer’s safety. The safety search was not a pretext, ruse or subterfuge to look for evidence. And, even if the officer’s purpose was also to look for drugs, it would not negate his authority to look for a weapon as part of a lawful safety search. The judge also rejected McKenzie’s contention that it was unreasonable to look inside the fanny pack because a pat-down of it would suffice to determine if there was a weapon inside. Finally, even if McKenzie’s Charter rights were breached, the judge would have admitted the evidence under s. 24(2). McKenzie was convicted of possessing a controlled substance for the purpose of trafficking, possessing a restricted firearm with ammunition, and possessing a firearm while prohibited.
“Protecting life and property is an important police duty that necessitates some interference with individual liberty.” – Justice Mainella
McKenzie challenged his convictions to the Manitoba Court of Appeal. In his view, his detention was arbitrary under s. 9 of the Charter and the search of his fanny pack unreasonable under s. 8. As a result, he suggested, the evidence ought to have been excluded under s. 24(2). But Justice Mainella, speaking for the Court of Appeal, concluded McKenzie’s detention and the search of his fanny pack were both lawful.
Investigative detention
“A police officer may detain an individual for investigative purposes ‘where they have reasonable grounds to suspect that the individual is connected to particular criminal activity and that such a detention is reasonably necessary in the circumstances,’” said Mainella. “An investigative detention affords police the ability to take reasonable measures to investigate an offence.” Here, the totality of the circumstances through the lens of the officer’s extensive training and experience provided the necessary reasonable suspicion for the investigative detention. The detention was also reasonably necessary and conducted in a reasonable manner. “Weapons offences are a serious threat to the peace, therefore there was significant importance in [the officer] taking immediate action in terms of the public good as well as a necessity for him to interfere with the accused’s liberty,” said Mainella. “The nature of the detention, with some limited use of force to pin the accused outside against a house, was appropriate given the inquiry related to a possible weapons offence, the accused was known to carry weapons, and the accused had knowingly attempted to evade police inquires by running.” McKenzie’s detention was not arbitrary.
Search incident to detention
The search of the fanny pack complied with the common law; it was reasonably necessary to eliminate an imminent threat to the officer’s safety. Mainella wrote:
Protecting life and property is an important police duty that necessitates some interference with individual liberty… [The officer] had cause to have concern for his personal safety given the accused’s unusual mannerisms suggested he may be carrying a weapon. [The officer] was by himself in a dark area as [the cover officer] had not yet arrived. Although the accused was cooperating, he had just recently attempted to evade the police… Finally, the extent of the infringement (opening the remaining 25 per cent of the fanny pack to shine a flashlight in) was focused entirely on a protective function. [para. 47]
Even if the officer was also searching for evidence of drugs, the search was still reasonable because he was looking inside it to ensure his safety. The officer was not required to follow “a rigid sequence of a pat-down search first, before a bag or pocket may be opened or otherwise searched” in order for it to be reasonable, said Justice Mainella. “It strikes us as incorrect and entirely artificial to say that legally [the officer] was limited in his split second decision, where there was a real threat to his safety, to use his sense of touch on the outside of the fanny pack as opposed to completely opening the already partially open zipper and using his eyesight when he was careful to conduct a minimally intrusive search that was limited in its scope to locate weapons.” Since the fanny pack search conformed with the common law, there was no s. 8 Charter violation.
McKenzie’s appeal was dismissed and his convictions were upheld.
Mike Novakowski is Blue Line’s case law columnist.
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