R. v. Coric Date:, 2014 BCPC 188

Citation: R. v. Coric Date: 20140619 2014 BCPC 0188 File No: 198953-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KRISTIAN CORIC also known as KRISTIJAN CORIC RULING ON VOIR DIRE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: Federal Crown Counsel: L. Yip Counsel for the Defendant: S. Sugarman Place of Hearing: Surrey , B.C. Date of Hearing: June 17, 2014

Date of Judgment: June 19, 2014 [ 1 ] THE COURT : Kristian Coric is charged on Information 198953-1 that on February 10, 2013 at Surrey, British Columbia, he had possession of cocaine for the purpose of trafficking, and also that in the same circumstances he had possession of heroin for the purpose of trafficking, both counts contrary to s. 5(1) of the Controlled Drugs and Substances Act . [ 2 ] The defence challenges the admissibility of evidence seized from the vehicle Mr. Coric was driving at the time of his arrest.

The defence says that evidence was obtained in violation of his s. 9 right not to be arbitrarily detained or imprisoned, and his right under s. 8 of the Charter to be secure against unreasonable search and seizure. The defence says that to admit the evidence in the face of these breaches would bring the administration of justice into disrepute. [ 3 ] I heard evidence addressing these issues on a voir dire on the last day. The Crown presented the arresting officer, Cst. Raymond Lee. No further evidence was called.

Following submissions that day, the matter was adjourned to today's date for this ruling. [ 4 ] The circumstances are as follows: At about 3:40 p.m. on February 10th of 2013, Cst. Lee, a member of the Surrey RCMP Traffic Section, was parked in a driveway in the 15600 block of 108th Avenue in Surrey. He was seated in a police vehicle, facing 108th Avenue as traffic passed. He was observing drivers as they passed to see if any drivers had cell phones in their hands or were not wearing a seat belt, all contrary to Provincial Motor Vehicle legislation. [ 5 ] He observed a white Honda pass.

He saw the male driver was holding a cell phone in his hand as he drove. Cst. Lee pulled out and followed the vehicle east along 108th Avenue. The vehicle turned left onto 160th Street and then immediately left again into a gas station at that intersection. He followed the vehicle into the parking area. As he did so, he turned on his emergency lights which activated a camera on the dashboard and a microphone which he wore on his person. This system then provided a video and audio record of the activities taking place as the target vehicle stopped ahead of him and as he proceeded to and dealt with the driver.

That system also provided a video record of some duration from its memory which includes the period during which Cst. Lee followed the vehicle to the gas station. The circumstances of that earlier portion of the video record are not relevant to this ruling. What is relevant and helpful is the portion of audio and video record following the stop in the gas station parking area. [ 6 ] Cst. Lee was alone. After the vehicle stopped, Cst. Lee got out and walked to the driver's door of the Honda.

He agreed in cross-examination that by this point he had entered the B.C. licence plate number in his computer system and knew the particulars of the registered owner to be Bahrija Coric, born in 1954. At the driver's door he observed a male in the driver's seat, an Asian female in the front passenger seat, and a Caucasian male in the rear, passenger-side seat. Two cell phones were between the driver's legs. He advised the driver he was stopped for driving while holding his phone. [ 7 ] In evidence, Cst. Lee said he asked for his driver's licence.

On the audio record it sounds as though he says, "Can I see your driver's licence, please?" And then, "What do you have for ID?" The driver checked about him. Cst. Lee described him as "fidgeting" as he looked for identification. He said words to the effect, "I dropped my wallet." He was still seated in the driver's seat. Although the video recording is generally consistent with Cst. Lee's evidence, it is difficult to make out all that was said on the audio recording. [ 8 ] The driver is heard to say from the driver's seat, "That's my mom over there." Cst. Lee is seen to look over his shoulder.

No one is visible in the relatively narrow angle of the video. Cst. Lee has no recollection whether he noted anyone in the area. No one approached him during the encounter, identifying herself as the driver's mother. Cst. Lee then asked for the driver's full legal name. The driver replied, "Kristian Coric." [ 9 ] During this exchange with the driver still in the driver's seat, Cst. Lee observed that he wore a pair of what appeared to be sweatpants. He could see a piece of clear plastic film sticking out of the left pocket of the driver's sweatpants.

He is familiar with the use of plastic baggies to package illicit drugs. He said he was suspicious the driver may have drugs, but he was not sure. He called for backup, using the microphone on his lapel. He said he was aware in his experience that people with drugs could have weapons and could act irrationally and could try to flee. [ 10 ] In direct examination he confirmed that despite this observation he did not launch into a drug investigation, he continued to address the driver on the basis of a violation of driving regulations relating to the cell phone.

The driver had not produced a driver's licence. [ 11 ] At this point, Cst. Lee directed the driver to get out of the vehicle. The driver got out. As he did so, the officer asked whose vehicle it was, and the driver said, "My mom's." In direct evidence, Cst. Lee said he directed the driver out of the car in order to separate the driver from the other occupants of the vehicle in order for him to ask questions to determine the driver's identity. He said he did this as a matter of practice where a driver could not produce ID and others were in the vehicle.

In this way he could obtain information from the driver and then from the passengers which would not be tainted by what they heard the driver say about his particulars. He was concerned to avoid being deceived as to the driver's real identity. He said when a person does not provide ID there could be a completely innocent explanation, but in such a situation a red flag goes up that the reason could be that the driver is prohibited or unlicensed. He said in cross-examination a person's name could be spelled in different ways.

He also said he wanted to compare the particulars the person gives with the particulars that are available on his computer. He said as well that he was outnumbered and he had an officer safety concern. [ 12 ] Once out of the vehicle, Cst. Lee said the driver bent at the waist, removed the plastic bag from his pocket, and tossed it back into the open door of the vehicle. He saw it land on the driver's doorjamb beside the seat. He saw it was a clear plastic bag containing a number of round pellets or balls wrapped consistent with packaging of heroin and cocaine which he is familiar with.

He grabbed the bag from the doorjamb and put it on the roof of the car. [ 13 ] On the video, the driver is seen to get out of the vehicle, immediately turn back towards the open door and move about in close proximity to the door. Cst. Lee is heard to say words to the effect, "What did you take from your pocket?" He moved past the driver,

retrieved the bag and put it on the roof. He then took physical hold of the driver and informed him that he was under arrest for possession of a controlled substance. He handcuffed the driver and called again for backup. He then moved the driver toward the police vehicle and out of the camera view, just as the second officer appeared and went towards the suspect vehicle. The bag and contents retrieved from the doorjamb by Cst. Lee were seized and the Crown seeks to admit that evidence at trial. [ 14 ] Subsequently, a search warrant was obtained to search the target vehicle.

Other suspected illicit substances, two cell phones and a quantity of cash were seized which the Crown also seeks to tender. I understand this defence application to exclude evidence covers all of these items which have been seized. [ 15 ] In direct evidence, Cst. Lee said that on the day in question he identified the driver as Kristian Coric. He identified the accused before the court as that driver. In cross-examination Cst. Lee confirmed that he had had dealings with Mr. Coric prior to the events of February 10th, 2013.

He said when the driver told him his name it was familiar to him but he did not connect it to the face or to a past event. He said the name just sounded familiar. He said it did not occur to him at the time that he had dealt with the driver before. [ 16 ] On further cross-examination, Cst. Lee confirmed that on January 29th of 2014 he attended court to give evidence at the trial of Mr. Coric for a driving offence arising on June 17, 2011, during which he dealt with Mr. Coric for about 15 minutes and served him with some documents. He agreed that at that trial, identification of the driver was in issue.

He agreed that at that trial before a judicial justice of the peace he relied on a video from the June 2011 incident, a distinctive name, and recognition of Mr. Coric as the driver in 2011. He agreed that his familiarity with Mr. Coric, or at least with his name, was not mentioned in any notes, report or Information to Obtain a Search Warrant, and was only brought to the Crown's attention in an interview leading up to this trial. [ 17 ] This issue has relevance to the defence argument on this voir dire because the defence says there was no lawful basis for Cst. Lee to direct Mr.

Coric out of his vehicle and to thereby elevate his level of detention in order to address identification issues respecting Mr. Coric because the officer was already familiar with Mr. Coric and did not need to remove him from the vehicle in order to follow-up on those inquiries, particularly considering that Mr. Coric provided his name to the officer before he was removed from the vehicle. The defence says Cst. Lee's justification for directing Mr.

Coric out of the vehicle, that is to address identification concerns arising from the absence of identification, must be looked at critically in light of his admission that he had some familiarity with the accused. [ 18 ] The defence cross-examined Cst. Lee extensively on the reason he directed Mr. Coric out of the vehicle. He reiterated his concern to obtain reliable identification of Mr. Coric referring to proper spelling of his name, date of birth and address. He said he was not satisfied this was Mr. Coric at any point because no reliable ID had been provided. I note here that the cross-examination of Cst.

Lee, which amplified his past dealings with Mr. Coric, had not yet occurred; it came towards the end of the cross-examination. [ 19 ] Cst. Lee was referred to Mr. Coric's statement that his mother was nearby. There is no evidence on this hearing that in fact his mother, who was the owner of the vehicle, was nearby. Cst. Lee cannot recall if he noted a woman nearby or not. No one approached Cst. Lee during the extended period of time he was at the scene. I place no weight on Mr.

Coric's assertion to the officer that in fact his mother was nearby and therefore available as a source of confirming information respecting the accused's identity. [ 20 ] Cst. Lee confirmed his usual practice is to remove a person from a vehicle where no ID is produced and others are present, but he said he evaluates all the circumstances and might depart on occasion from his usual practice. Here he said he noted that the driver was fidgeting and his impression was the driver was very nervous. He agreed that he associated this fidgeting or nervousness to the person's inability to find his wallet.

He agreed this is not unusual for a person dealing with police. Although he said he had some suspicion about the presence of drugs having noted the piece of plastic in the pocket and the presence of two cell phones, he repeated that he did not direct the accused from the vehicle to advance a drug investigation but in order to confirm driver identity for a motor vehicle infraction.

He agreed he had no authority at that point to detain the accused for a drug investigation. [ 21 ] Secondarily, he referred to the presence of two unfamiliar passengers, officer safety and past experience that drivers have fled when left in their vehicle while he checks his computer. He agreed he could have obtained an array of personal information from his computer, including past police encounters and related associations without removing Mr. Coric, and then return to the driver in the vehicle with the information. He agreed he had a name for the driver by this point to work from.

He said to do so risked compromising the integrity of any information he might get from the driver and passengers directly, and he risked them fleeing. [ 22 ] The Crown says Cst. Lee has provided a proper justification for his direction to Mr. Coric to get out of the vehicle in order to pursue inquiries to confirm his identity. At the same time he had other suspicions, but his actions on a traffic stop where ID was not provided was appropriate the Crown says. The Crown says, in essence the stop was for a lawful law enforcement purpose.

A detention ensued, and the step taken to have the driver get out of the vehicle was properly within the scope of that detention for the reasons stated. [ 23 ] The Crown says the doctrine of plain view then applies to the bag the accused took from his pocket and threw into the vehicle. The accused at that point moved to distance himself from the bag and its contents, and in doing so left it in plain view. He abandoned any reasonable expectation of privacy in respect of the bag in doing so.

The Crown says no s. 8 breach occurred. [ 24 ] The defence says that although the traffic stop constituted a lawful detention, no lawful justification should be found to elevate that very basic level of detention which would contemplate the officer addressing the driver's identity while he remained in the vehicle to permit him to order the accused to leave that vehicle. The defence says there was then an unlawful detention and a breach of Mr. Coric's s. 9 Charter right. Discovery of the evidence flowed from that breach and an unlawful seizure contrary to s. 8 occurred. The evidence should be excluded.

The defence says the subsequent search warrant and discovery of other items flows from those breaches. The essence of the defence argument is that no basis, either for traffic enforcement purposes or enhanced by any other concern the officer may have taken account of, justified the removal of the accused from the vehicle. In any event, the defence says, there is reason to conclude the officer was in fact focused on a drug investigation where the circumstances are inadequate to support this enhanced level of detention.

The defence suggests the officer in that case acted on a whim. [ 25 ] The defence does not dispute that the stop and subsequent detention for traffic violation investigation was lawful. [ 26 ] I must first consider whether an officer has the power in those circumstances to direct a person detained for that purpose to get

out of his vehicle, and then whether the circumstances in this case justified that direction by Cst. Lee. [27] Generally speaking, a very modest degree of psychological compulsion will be required to effect a detention at roadside by aproperly uniformed police officer who is investigating a traffic violation. It would be reasonable to conclude that, as Cst.

Leeacknowledged, where a person presents identification or other basic documents requested by the officer standing at his window, theofficer will not need to take any other step to effect a detention for as long as it will reasonably take for him or her to complete necessaryinquiries, do computer checks, and issue any required documents to the driver. [28] In the present case, the defence says the scope of the detention of Mr. Coric need never have progressed beyond this point. Cst.Lee had everything he needed to make the necessary inquiries and could have fully dealt with Mr.

Coric without requiring him to exit hisvehicle. There was no lawful basis to give that direction, and Cst. Lee's explanations are inadequate for that purpose, and unreliable. The defence says once he was directed out of the vehicle the detention became arbitrary and unlawful. It took on an entirely differentcharacter and was unjustified. [29] The defence says the Crown has failed to establish the steps taken by Cst. Lee were reasonable to address his stated concern toconfirm the accused's identity. The defence says the evidence points to the removal of Mr.

Lee being directed to advancing a druginvestigation based on very modest or otherwise innocent observations. The defence says the officer abused police power for animproper purpose. [30] The defence has referred to the case of R. v. Tombs, [2012] BCSC 1826 in the Supreme Court of British Columbia, and thereference there to a decision in R. v. Mellenthin, (SCC), [1992] 3 SCR 615 in 1992 in the Supreme Court of Canadawhere it was pointed out that the police should not use vehicle stops for highway traffic legislation investigations as a means to conductan inquisition or to conduct unreasonable searches.

In Tombs, a police officer pulled over a vehicle which failed to come to a full stop ata stop sign. At the same time the officer recognized the passenger, Bartlett, and believed that he was violating a court-ordered curfew. The driver, Tombs, was very nervous. The officer noticed drugs in plain view through a window. The officer had not intended to giveTombs a ticket for the driving violation. He acknowledged that his primary purpose in pulling the vehicle over was to deal with Bartlett. He said he told Tombs to get out of the vehicle because he wanted to question him about why he was so nervous.

In that case the courtfound the officer had no authority to order the accused out of the vehicle. A Charter breach occurred and evidence was not admitted on as. 24(2) analysis. [31] That case differs from the case before me. In that case the officer said that he directed the accused out to inquire into hisnervousness, believing something else was occurring. He acknowledged that his Motor Vehicle Act investigation was spent at that point,and he was taking no further investigative steps in that regard. [32] The defence refers as well to R. v. Power 2001 Nfld CA 50.

In that case the officer pulled the driver over for erratic driving. He provided registration for the vehicle but not his driver's licence. The officer requested he accompany the officer to the police car tocheck his identity and to check for warrants. He conducted a search of the accused for weapons and found marihuana and scales. Thecourt focused on the search and found it not to have been incident to the detention. The search was unreasonable. The court found thestated reason to search for weapons was doubtful and likely a ruse in order to search for drugs. That case differs from the present case.

The officer never informed the accused of the original reason for the traffic stop at the time of detention. Further, in this case no searchof Mr. Coric had been proposed or undertaken at the point he removed the baggie and the officer retrieved it. [33] The parameters of police powers in respect of a lawful detention were set out by the Supreme Court of Canada in R. v. Mann2004 SCC 52. The detention will be arbitrary if the conduct is not in accord with common law police powers. The detention should bebrief.

Consideration of the parameters of an investigative detention, that a pat-down search conducted in a reasonable manner and thelimited scope of questioning, assists in concluding that detention in a situation such as this for traffic enforcement purposes must be nomore intrusive than necessary to address that issue, but within that scope it must allow for some ability on the part of the officer torespond to the circumstances as he or she observes them to be. [34] I conclude that there can be circumstances where, in respect to the traffic stop, it will become appropriate for the investigator totake what I conclude is the relatively less intrusive step of directing the driver to get out of the vehicle.

Here the officer said he did thisin order to confirm the driver's identity. He intended to separate him from others in the vehicle in order to avoid an opportunity tocollude as to the driver's details. The driver could not provide identification or a driver's licence. He stated his name, which triggered inthe officer some level of familiarity with that name, although nothing specific which at that moment the officer could associate to thedriver. I accept that evidence. Although it was subsequently established the officer had prior dealings with Mr.

Coric and recently cameto court and identified him in those other proceedings, I am not prepared to find the officer, as he dealt with Mr. Coric on February 10th,2013 in this brief encounter at his car window, made that association. [35] In directing Mr. Coric out of the vehicle, the officer also expressed the safety concern, bearing in mind the presence of others inthe vehicle. I accept his evidence that he continued to pursue the Motor Vehicle Act investigation and that he had some level of concernthat there might be a drug connection.

I also accept his evidence that his concern at that moment respecting drugs had not elevated to thelevel that he could act on it, but I conclude it can have some role in his assessment of officer safety. [36] In R. v. Crocker 2009 BCCA 388, quoted in Tombs at paragraph 67 and following paragraphs, the Court of Appeal points outthat the Supreme Court of Canada in Mann recognized the need for police to ensure their short-term safety by non-intrusive means.

Several references provided in Crocker reflect on the high risk officers face and the present possibility that a routine situation canbecome dangerous without warning. Those authorities include Mellenthin, R. v. Willis 2003 MBCA 54, and R. v. Duong 2006 BCCA325. They endorse an approach to officer safety which does not require each action be measured with nicety. [37] Here I conclude the direction to Mr. Coric to step out of the vehicle in the circumstances Cst. Lee was dealing with was asensible and minimally intrusive step. Although Cst. Lee referred to Mr.

Coric as fidgeting and nervous, he associated that to his searchfor his wallet. I find that observation does not add to or detract from what I conclude was a lawful basis to direct Mr. Coric to step out ofhis vehicle. I find no violation of his s. 9 right against arbitrary detention.

[ 38 ] At that point Mr. Coric disposed of the baggie in his pocket as described by Cst. Lee by tossing it toward the open car door where it landed on the jamb beside the driver's seat. No search had been undertaken or even raised by Cst. Lee. This was a spontaneous act by the accused. The defence says at that point the seizure of the item from the car doorway was an unlawful search and seizure. The Crown says the accused had no reasonable expectation of privacy having tossed the item as he did. [ 39 ] In R. v.

Greenwald 2010 BCCA 288 at paragraph 34 , the Court of Appeal set out the factors to consider when assessing whether a reasonable expectation of privacy is present, paraphrasing from the Supreme Court of Canada decision in R. v. Patrick 2009 SCC 17 at para. 27 . Those factors as set out in that decision are the following: 1. What was the nature or subject matter of the evidence gathered by the police? 2. Did the appellant have a direct interest in the contents? 3. Did the appellant have a subjective expectation of privacy in the informational content of the garbage? 4.

If so, was the expectation objectively reasonable?

In this respect, regard must be had to: a. the place where the alleged “search” occurred; in particular, did the police trespass on the appellant’s property and, if so, what is the impact of such a finding on the privacy analysis? b. whether the informational content of the subject matter was in public view; c. whether the informational content of the subject matter had been abandoned; d. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality? e. whether the police technique was intrusive in relation to the privacy interest; f. whether the use of this evidence gathering technique was itself objectively unreasonable; g. whether the informational content exposed any intimate details of the appellant’s lifestyle, or information of a biographic nature. [ 40 ] Here the evidence in issue was illicit substances packaged as this officer has seen illicit substances packaged in the past.

The accused had close and personal contact with the bag and contents which he took from his pants pocket. His actions in removing it and tossing it towards the car door is consistent with a desire to distance himself and to disassociate himself from the item, considering what it is, and that he is dealing with a police officer who might well at some point search him. On the one hand, he directed it towards to the open door; on the other hand, he did so quickly and without care. One could conclude reasonably on these objective observations that he knew the contents to be illicit. Cst.

Lee had taken no steps to that point to retrieve it from his pocket or to search the accused. The video demonstrates he backed away slightly as the accused was exiting the vehicle. It was only as the accused turned back to the door to dispose of the bag that the officer reacted. The officer stepped in to retrieve it and secure it and acted, in so doing, in a minimally intrusive way. The bag was visible to him, as were the contents, at the very edge of the car door. [ 41 ] I note the vehicle is not owned by the accused. The owner was not in the vehicle.

There is no evidence as to who the others in the vehicle were or what, if any, information they had about the presence of the item in Mr. Coric's pocket. [ 42 ] In all of these circumstances, and the circumstances as I have earlier set them out in this ruling, I conclude that Mr. Coric had no reasonable expectation of privacy in the item itself once he removed it and tossed it, and a very low expectation of privacy in relation to the vehicle itself in these circumstances. [ 43 ] I find Mr. Coric's right under s. 8 of the Charter has not been infringed or violated. Seizure of the bag and contents was lawful.

From this, by extension, the obtaining of a warrant and ultimate search of the vehicle and the discovery of other items was lawful. No argument was advanced to the contrary. The evidence recovered will be admissible in the trial.

(RULING CONCLUDED)