R. v. Mayes, 2017 BCPC 463

Citation: R. v. Mayes 2017 BCPC 463 Date: 20170623 File No: 215426-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. JOHN ANDREW MAYES RULING ON VOIR DIRE OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Crown: D. Novakovic Counsel for the Defendant: J. Davidson, S. Janicki Place of Hearing: Surrey , B.C. Dates of Hearing: April 27 and 28, 2017 Date of Judgment: June 23, 2017 INTRODUCTION

[ 1 ] Andrew John Mayes is charged with one count of Dangerous Driving and two counts of Possession for the Purposes of Trafficking (methamphetamine and heroin) contrary to s. 5(2) Controlled Drugs and Substances Act . The police observed Mr. Mayes’ manner of driving and stopped his vehicle. After his arrest for Dangerous Driving, the police discovered the drugs in his vehicle. He was re-arrested for Possession for the Purposes of Trafficking. The drugs and other items were seized from the vehicle.

Counsel sought a voir dire at the outset of the trial to determine if the drug evidence seized from the vehicle is admissible at trial. [ 2 ] The Crown and Defence agree that the initial arrest of Mr. Mayes for Dangerous Driving was lawful. The parties disagree about what happened next. The dispute centers on how and when the police discovered the drugs in the vehicle. [ 3 ] On this voir dire , the Crown called several police witnesses. Cpl. Turpin and Cpl. Veller stopped and arrested Mr. Mayes. Cpl. Veller searched his vehicle. The drugs were discovered in the vehicle at roadside. Cpl. Irwin and Cst.

Schwerdfeiger transported Mr. Mayes to the police detachment and strip searched him. ISSUES [ 4 ] I am required to assess what occurred in this case and apply the legal principles relating to the plain view doctrine, arrest, searches and seizures: Charter of Rights and Freedoms (the “ Charter ”), ss. 8 and 9 ; s. 495 of the Criminal Code of Canada . [ 5 ] The ultimate question on this voir dire is whether the evidence of the methamphetamine and heroin is admissible at trial. At this stage, I must consider the conduct of the police, as follows: a.

Has the Crown established that, on a balance of probabilities, the drugs were in plain view of the officer before he arrested Mr. Mayes for Possession for the Purposes of Trafficking? b. In addition or in the alternative, has the Crown established that, on the balance of probabilities, the search incident to the Dangerous Driving arrest was authorized by law? In other words, did the officer conduct the search for a valid purpose directly related to the arrest for Dangerous Driving? c. If I make any breach findings, do any of those breach findings impact the lawfulness of the strip search of Mr.

Mayes at the police station? [ 6 ] The Crown argues that the police initially saw the drugs in plain view. The Crown submits that this observation permitted the police to arrest Mr. Mayes for Possession for the Purposes of Trafficking, seize the drugs, and search the vehicle incident to that second arrest. From the Crown’s perspective, the subsequent strip search is accordingly lawful. [ 7 ] Regardless, the Crown also argues that the first arrest for Dangerous Driving permitted the police to search the vehicle incident to arrest.

The Crown submits that the police are permitted to peer into the vehicle to ensure officer safety and to search for evidence that could be used at a Dangerous Driving trial. Therefore, in the Crown’s view, the drugs were discovered in the course of a lawful search incident to arrest. Thus, the Crown submits that the subsequent arrest for Possession for the Purposes of Trafficking, any search incidental to that arrest, and the strip search were all lawful. [ 8 ] Mr. Mayes counters that I cannot conclude that the drugs were in plain view due to the limited conditions of visibility. Consequently, Mr.

Mayes argues that the arrest for Possession for the Purposes of Trafficking and the search incident to that arrest are both unlawful - which then renders the subsequent strip search unlawful. [ 9 ] In addition or in the alternative, Mr. Mayes also submits that any search incident to the Dangerous Driving arrest was not authorized by law because it was not conducted for a valid purpose nor directly related to the arrest. In his view, the discovery of the drugs occurred due to the unlawful search, and rendered the subsequent second arrest, search incidental to the second arrest, and strip search unlawful.

Otherwise, Mr. Mayes does not take issue with the manner in which the strip search was conducted. If I find that there was a breach of s. 8 (related to the plain view doctrine and/or the search incident to the first arrest), Mr. Mayes takes the position that I should consider the strip search as part of a pattern of breaches at any second stage of this hearing. [ 10 ] If I find that the drugs were not in plain view and/or that the search incident to the arrest for Dangerous Driving was unlawful, the Defence seeks a finding that Mr. Mayes’ s. 8 Charter right was breached.

If I make a breach finding, I will then need to conduct a further hearing to determine whether the items seized should be admitted as evidence on the trial, pursuant to s. 24(2) of the Charter . GENERAL BACKGROUND FACTS [ 11 ] I have accepted the following as background facts. [ 12 ] On October 20, 2015 at approximately 10:05 p.m., Cpl. Turpin (Coquitlam RCMP) was working with Cpl. Veller, who was an RCMP member of the Surrey Gang Enforcement Team (“SGET”). By October 2015, Cpl.

Veller was an experienced drug investigator with approximately nine years total of direct experience working in drug investigation units (six years) and then the SGET (three years). SGET typically dealt with investigations related to drugs, gangs, and organized crime. That night, the officers were conducting “pro- active” patrols, seeking to suppress firearms violence. This police initiative was attempting to respond to numerous recent shootings in the Surrey area. Cpl. Turpin and Cpl. Veller were patrolling the streets in an unmarked police vehicle. [ 13 ] At approximately 10:05 p.m., the officers observed Mr.

Mayes erratically driving a vehicle at a high speed (approximately 100 km/hr), weaving in and out of traffic, cutting in front of other vehicles within short distances, passing on the shoulder, crossing the centre line approximately three times, and failing to signal during these activities. Cpl. Turpin checked the police computer and learned that Mr. Mayes had a history of previous drug offences, traffic infractions and related matters. I was not provided with any evidence about the details, recency, foundation or reliability of this information.

The police did not receive any history of violence or escape relating to Mr. Mayes.

[ 14 ] Regardless, I accept that this criminal and traffic information would have been particularly relevant to these officers. The police characterized it as one part of the threat assessment information, which I accept. However, I note that the officers appeared to downplay the drug-related background information. The SGET typically investigated drug-related and gang matters. Accordingly, I infer that the SGET considered drug-related activity to be linked with the recent gun violence, and consequently, their “pro-active” initiatives. Once the officers learned this drug-related information about Mr.

Mayes, it was the lens through which they viewed him and the contents of his vehicle. [ 15 ] This lens is apparent in the manner of the arrest. After following Mr. Mayes for several blocks, the police activated their siren and lights to stop Mr. Mayes. Cpl. Turpin rated this vehicle stop as “high risk” due to the information received about Mr. Mayes’ criminal background and previous drug activity, his manner of driving, the current conditions, and the location. I note that I heard no evidence about how the current conditions and location provided a basis for a high risk vehicle stop. Cpl.

Turpin conducted a “Code 5” vehicle stop, and drew her firearm. She used a loudspeaker to instruct the driver how to behave before and after he exited the vehicle. I accept that he exited the vehicle at gunpoint. Cpl. Veller testified that he did not draw his firearm. [ 16 ] Then, he was ordered to the ground, “spread eagle.” Cpl. Veller took custody of Mr. Mayes, told him he was under arrest for Dangerous Driving, and placed him in the rear of their police vehicle located behind Mr. Mayes’ vehicle. Cpl. Veller then informed Mr.

Mayes about his Charter rights and his right to remain silent. [ 17 ] The officers then returned to the vehicle to determine if there was anyone else inside. They saw no one else, but Cpl. Veller saw a plastic bag containing a white substance, which he immediately believed was drugs, in the driver’s door compartment. After opening the driver’s door to view the compartment, he viewed the plastic bag, again. He then returned to Mr. Mayes and re-arrested him for Possession for the Purposes of Trafficking. He provided Mr. Mayes with his Charter rights, again. Mr.

Mayes indicated that he wished to speak to counsel. [ 18 ] Cpl. Veller then removed two plastic bags from the driver’s door compartment while photographing the extraction. Next, Cpl. Veller transferred custody of Mr. Mayes to Cst. Irwin and authorized a strip search of Mr. Mayes at the police detachment. [ 19 ] Cpl. Veller then continued to search the vehicle and take photographs. The contents of the two plastic bags were eventually weighed and found to contain 20.85 gms methamphetamine and 10.28 gms heroin. The officer testified that he also found two cell phones.

He located a total of $265 cash, but was unable to say how much of that cash was found in the vehicle and how much was found on Mr. Mayes. [ 20 ] Mr. Mayes was transported to the police station and strip searched, which lasted for three minutes. His private areas (genitals, buttocks) were exposed during the strip search. No items of interest were found as a result of the strip search. The manner of the strip search is not in issue. [ 21 ] The Crown submits that the only purpose in stopping Mr. Mayes’ vehicle related to the manner of his driving. Mr.

Mayes counters that the police engaged a dual purpose stop that related to his manner of driving and their intention to pursue a drug investigation (based on his drug-related history). Given that Mr. Mayes is not contesting the lawfulness of the vehicle stop and immediate arrest for Dangerous Driving, which amounted to a detention, it is unnecessary for me to decide this point. I cannot conclude that Mr. Mayes was stopped for an improper purpose. [ 22 ] I accept that the police had a mere suspicion that Mr.

Mayes may have been engaged in drug-related activities, given his background information, when they stopped him. The police were entitled to ask themselves why Mr. Mayes was driving at such a high rate of speed and in the observed manner. They had a mere suspicion that his manner of driving might be related to the purpose of their patrol initiative. Again, I consider that mere suspicion as the lens through which they dealt with Mr. Mayes (arrest at gunpoint) and viewed the contents of his vehicle.

WERE THE DRUGS IN PLAIN VIEW? [ 23 ] In order to determine if the drugs were in plain view, I start by describing my initial findings of fact on that issue. I will then consider the applicable legal principle (the plain view doctrine) and then make my determination. My assessment of the officers’ credibility and reliability is central to my determination. VISUAL INSPECTION OF THE VEHICLE [ 24 ] After Mr. Mayes was arrested for Dangerous Driving and placed in the police vehicle, Cpl. Turpin and Cpl. Veller returned to Mr. Mayes’ vehicle and checked it for other occupants.

It was a two-door sports car with tinted windows. It was not possible to see through the tinted windows. The vehicle rested in a lower than usual position on the ground. The car doors were closed but the windows were open and down. [ 25 ] Cpl. Turpin moved up the driver’s side while Cpl. Veller moved up the curb side/passenger side of the vehicle. Cpl. Turpin looked into the vehicle from her side and saw no one else inside. She noted that the sunroof was partially open or “cracked a bit,” from which she could see “a bit” from the top, downwards. She did not open the driver’s door. She notified Cpl.

Veller that the vehicle was clear, from her side. Cpl. Turpin testified that Cpl. Veller then said, “dope in the door.” She replied “okay” and looked downwards, from outside the driver’s door, but did not see any drugs from the angle of her viewpoint. She does not appear to have participated in any subsequent search of the vehicle. [ 26 ] I accept that Cpl. Veller looked through the front passenger side window and sunroof and observed the interior of the vehicle. I accept that he crouched down to peer inside the vehicle through the open passenger window.

He saw what appeared to be the top of a plastic bag in the top right corner of the inside storage compartment or pocket in the driver’s door. He straightened up and looked through the partially opened sunroof and saw what appeared to be a plastic bag with a white substance inside. He immediately believed that the bag contained drugs. He moved to the driver’s door, opened it, and looked closely at the bag without touching or removing it. His stated purpose for opening the driver’s door and looking at the plastic bag was solely with regards to whether he should arrest Mr.

Mayes for Possession of Drugs or, rather, for Possession for the Purposes of Trafficking. In other words, Cpl. Veller opened the driver’sdoor for a purpose that was not related to the Dangerous Driving arrest or investigation. Upon viewing the bag, at that point, heconcluded that Mr. Mayes should be arrested for Possession for the Purposes of Trafficking. LEGAL PRINCIPLES – PLAIN VIEW DOCTRINE [27] The plain view doctrine is summarized by Smart, J., in R. v.

Sipes, 2011 BCSC 1763 at para. 191: “In sum, the plain viewdoctrine is a common law power that permits the police to seize contraband, stolen property or evidence of a crime, without a warrant,when they discover it in plain view when lawfully carrying out their duties. It is a power to seize, not search.” The plain view doctrine isa narrow exception to the constitutional presumption that police search and seizure requires prior judicial authorization: R. v. Clarke,2016 BCSC 1323 at para. 143. citing R. v. Cook, [2008] O.J. No. 4765. (OSCJ) at para. 37, 182 C.R.R. (2d) 158.

The court notes that theplain view doctrine establishes a limited seizure power and is not a general exploratory search authority: Clarke, supra, at para. 144; seealso Cook, supra, at para. 37. [28] I have reviewed a number of cases, some of which were provided by counsel. In my view, the plain view doctrine applies whenthe following circumstances exist: a. If the police suspect that the observed item is crime-related, the police are permitted to seize it or investigate it: R. v. Grunwald,2010 BCCA 288 at para. 47, citing the dissent of LaForest, J., in R. v. Belnavis, (SCC), [1997] 3 S.C.R. 341 at para. 57. b.

The officer must be lawfully entitled to be present in the position from which she observes or visually detects the item: Sipes,supra, at paras. 187-189, citing The Law of Search and Seizure in Canada, 7th ed. (Markham, Ontario: LexisNexis, 2007), James A.Fontana and David Keeshan at p. 551 and R. v. Buhay, 2003 SCC 30 at para. 37. c. The item in plain view had to be immediately obvious to the officer and visible without positive action, investigativeexamination, testing or other manipulation by the officer to make it visible: R. v.

Law, 2002 SCC 10 at paras. 27-28; Sipes, supra, atpara. 187 citing The Law of Search and Seizure in Canada, 7th ed. (Markham, Ontario: LexisNexis, 2007), James A. Fontana and DavidKeeshan at p. 551. d. The “criminal character” of the item must be “readily apparent,” through the unaided use of the officer’s senses: Clarke, supra,at para. 144; Law, supra, at para. 27. e. The police are permitted to use a flashlight at night to view the interior of a vehicle: Grunwald, supra, at para. 29, citing R. v.Mellenthin, (SCC), [1992] 3 S.C.R. 615 at pp. 623-624.

Bennett, J.A., in Grunwald, supra, at para. 39, stated that, “Inmy view, common sense tells us that the police, working at night, will have occasion to use flashlights in the ordinary course of theirduties. It is not objectively reasonable to expect that they would not. When the police are lawfully where they are permitted to be, the useof artificial illumination should not automatically constitute a search.” f. The officer must unexpectedly or inadvertently discover the item: R. v.

Law, supra, at para. 27; Sipes, supra, at para. 187 citingThe Law of Search and Seizure in Canada, supra, at p. 551; Clarke, supra, at para. 143 citing Cook, supra, at para. 37. g. The plain view doctrine does not permit the officer to conduct an exploratory search for other evidence: Clarke, supra, at para.144, citing R. v. Asp, 2008 BCSC 794, appeal dismissed on grounds other than the plain view doctrine 2011 BCCA 433. h.

The extent to which, “...the officer was driven by another law enforcement objective” will impact whether the officer hadreasonable and probable grounds to suspect the accused and, accordingly, whether she needed to obtain a search warrant: Law, supra, atpara. 28. In Law, the police located a stolen safe in an open field. Its contents were lodged as exhibits by the investigating officer on thestolen safe aspect. Another officer in a matter unrelated to the stolen safe copied documentary exhibits located in the safe and had themtranslated for a different investigation of the accused.

The Supreme Court of Canada indicated that the second officer had manipulatedthe documents such that they were not in plain view and “...lacked reasonable and probable grounds to suspect the appellants. Suchconduct is precisely what the search warrant process is meant to prevent”: Law, ibid. DOES THE PLAIN VIEW DOCTRINE APPLY? [29] In order to determine if the drugs were in plain view, I have to ask this relevant question: In all of the circumstances, could Cpl.Veller have seen a bag that contained drugs when he looked through the sunroof?

I have assessed the reliability and credibility of Cpl.Veller’s evidence on this issue. Cpl. Veller was examined extensively by counsel about what he could and could not see through thepassenger window and the sunroof. Cpl. Veller was also examined on the photographs he took, particularly those taken before heremoved items from the driver’s door. [30] He acted lawfully when he peered inside the vehicle to ensure that no one else was present. Therefore, he was in a lawfulposition to observe the bag through the window and sunroof.

He appeared to unexpectedly or inadvertently see something that attractedhis attention (the top of a plastic bag) in the course of clearing the vehicle. [31] The issue is whether the criminal character of the bag was immediately obvious and visible to the officer without further positiveaction, investigative examination, or other manipulation by the officer to make it visible. The speed with which he uttered the phrase“dope in the door” immediately to Cpl.

Turpin, when he was still on the passenger side of the vehicle, suggests that the criminalcharacter of the bag appeared immediately obvious and visible to him. [32] Was he jumping to conclusions due to the lens of Mr. Mayes’ undated and unspecified drug-related criminal history, theobjectives of the SGET patrol (drugs and guns), and Cpl. Veller’s own extensive professional experience dealing with illicit drugmatters? The answer is: possibly. Cpl. Veller’s immediate conclusion that drug dealers use plastic bags or ziplock bags telescopes theabove mentioned lens.

A person may also use a plastic or ziplock bag for tissues, paper towels or napkins in such a location, forexample. On the other hand, it would be unrealistic to expect that an officer could not or would not act on the information at his disposal

and his experience. [ 33 ] For the most part, Cpl. Veller was unshaken in his testimony about his ability to view the criminal character of the bag. However, there were moments when his answers did not directly correspond to Ms. Davidson’s questions, and instances when he had to be redirected to her question for a responsive answer. His avoidance of direct answers on those occasions detracted from his credibility, to some extent. [ 34 ] Cpl. Veller testified that he could only see the top of the plastic bag from the front passenger side window.

However, when he straightened up and looked through the sunroof downwards to the driver’s door pocket, he saw what he immediately concluded was a plastic bag of drugs located there. He initially stated in direct examination that he could see an open bag with a white substance inside that he believed to be drugs at that point. Later, still in direct examination, he stated that the plastic bag was clear and tied off.

Late in his cross-examination, as I understand his evidence, he testified that he saw the top of a plastic bag and a white rim (which he took to be drugs) located in the top of the pocket area. [ 35 ] Near the end of his extensive cross-examination, Ms. Davidson pressed Cpl. Veller about his ability to view the bag. Cpl. Veller then testified for the first time that he was using a flashlight to view the interior of the vehicle. Cpl. Turpin and Cpl. Veller were never asked in direct examination if either officer used anything to assist him or her while viewing the vehicle or its contents. Accordingly, Cpl.

Turpin made no reference to using a flashlight at any time while at the roadside scene. She also made no reference to Cpl. Veller using a flashlight at any point. [ 36 ] The timing of Cpl. Veller’s testimony regarding his use of a flashlight is perplexing. Given the evidentiary importance of his ability to view the contents of the driver’s door compartment, I expected such evidence to be canvassed in direct examination or offered much earlier during his cross-examination. [ 37 ] However, I do not wish to place undue weight on the officer’s evidence of flashlight use or the timing of his testimony on the point.

He was not contradicted by his notes or report regarding whether (or not) he used or referred to a flashlight. Cpl. Turpin’s own lack of reference to flashlights, in these circumstances, is insufficient to contradict Cpl. Veller on the point. She was never asked. While the timing of his evidence causes me to pause, Cpl. Veller’s evidence remains uncontradicted. His use of a flashlight would have enhanced his ability to see the contents of the car, including the driver’s side door compartment. [ 38 ] I have carefully examined the photographs taken by Cpl. Veller.

One photograph shows the view through the front passenger window, into the vehicle. The exterior of the passenger’s door and handle is depicted. I note that the photograph was not taken immediately at or inside the frame of the passenger window. It was taken a few steps back from the passenger door, which can be seen clearly in the photograph.

It also shows the sunroof aperture, which is approximately one-third open. [ 39 ] This photograph reflects the interior of the vehicle at the time the photograph was taken with a camera flash - but it does not reflect what the officer actually saw when he made his visual inspection. He was at the open front passenger window when he looked inside. The items in the driver’s door pocket were actually closer to him than depicted in the photograph. [ 40 ] The officer also took a photograph of the car interior from the partially open sunroof. The view of the driver’s door compartment is clearer.

I do not know if the officer used a magnified camera lens in this photograph for the sunroof photograph. However, the sunroof photograph shows more than one white coloured item in the driver’s door compartment, including the top of a clear plastic bag with white contents. [ 41 ] A camera flash was used when these two photographs were taken. The camera flash overexposed the photograph and infused the car interior with a white light. Regardless, I can still see the plastic bag with what appears to be a white substance encased in the plastic.

The white substance fills out the bag in a rounded shape or contour. [ 42 ] I have some concerns with Cpl. Veller’s credibility. Without the photographs, I would have some difficulty accepting his evidence. However, the photographs and the speed with which he verbalized his observation bolster his evidence. [ 43 ] If the legal test on this voir dire was proof beyond a reasonable doubt when I determine whether Cpl. Veller could obviously, immediately, and visibly see the criminal character of the plastic bag - I would not be able to conclude that he did. However, the legal test is lower on this voir dire .

In all the circumstances, and on a balance of probabilities, I find that Cpl. Veller was able to identify the criminal character of the plastic bag and that it was legally in plain view. [ 44 ] Accordingly, the officer was in a position to seize the bag at that point. The fact that he did not immediately seize the drugs does not diminish the fact that he was permitted to do so then or shortly thereafter, pursuant to the plain view doctrine. That same doctrine permitted him to investigate the bag by looking at it more closely to assess its quantity, not its criminal character.

Thus, I do not find that his opening the driver’s door constituted an independent search. He did not, at that time, attempt to search or explore any other areas of the car or even underneath the visible plastic bag. He did not touch it. [ 45 ] As stated by Huddart, J.A., in R. v. Dubois , 2004 BCCA 589 at para. 10 : “I am not persuaded an actual arrest is a prerequisite to a search, as long as there are both objective and subject grounds for an arrest.” Accordingly, Cpl. Veller was also entitled to postpone Mr. Mayes’ second arrest until after opening the car door to look more closely at the bag.

He was then in a position to arrest Mr. Mayes for, in his view, the more applicable charge. [ 46 ] The main principles regarding warrantless arrest that apply to this case are well known, as follows: a. Where the police arrest without a warrant, s. 495(1)(

b) of the Criminal Code of Canada applies. The police are entitled to arrest without warrant if the officer personally observes facts or events that can support an objectively reasonable belief that the suspect is presently committing an offence. The circumstances supporting the offence must be apparent to the officer at the time of the arrest: R. v. MacCannell , 2014 BCCA 254 at para. 21 .

b. The assessment of whether “it is apparent to the police officer that an offence is being committed” contains both subjective andobjective components: MacCannell, supra, at para. 28, citing R. v. Boyd, 2013 BCCA 19 at para. 6. c. The court should assess the officer’s olfactory and visual observations on a practical, non-technical, and common sense basis todetermine if the arrest decision was objectively justified: R. v. Ashby, 2013 BCCA 334 at paras. 56, 59.

The police officer’s experiencein detecting and recognizing the drug in question is also relevant: “It may be that some officers through experience or training canconvince the trial judge that they possess sufficient expertise that their opinion of present possession can be relied upon.” [R. v. Polashek(1999), (ON CA), 134 C.C.C. (3d) 187 (Ont. C.A.) at para. 14.] d. For an officer to have reasonable grounds for arrest, the officer is not required to rule out potential innocent explanations:MacCannell, supra, at para. 46. e.

An officer may lawfully stop a vehicle for a dual purpose, which includes a bona fide Motor Vehicle Act purpose and a separateinvestigative purpose: R. v. Lauriente, 2008 BCSC 187 para. 38. [47] The Crown has the onus of establishing, on a balance of probabilities, the above legal factors when the police arrest a personwithout a warrant. In order to arrest a person without a warrant, the police must have reasonable and probable grounds to believe that aperson is presently committing an offence. I find that Cpl.

Veller had a subjective belief that the plastic bag contained drugs, and hisbelief was objectively reasonable when viewed from the perspective of an officer with his experience and ongoing duties. Cpl. Veller’ssubjective belief was also supported by objective and independent evidence:

a) the photographs; and

b) the speed with which he utteredthe phrase “dope in the door” to Cpl. Turpin while still at the passenger side of the vehicle. Consequently, Cpl. Veller also was permittedto view the plastic bag more closely before the second arrest and his subsequent search of the vehicle after the second arrest. IMPACT OF DECISION ON OTHER ISSUES [48] Given my conclusions above, it is unnecessary for me to decide whether opening the door amounted to an unlawful searchbecause it was not incident to the first arrest for Dangerous Driving.

It is also unnecessary for me to consider whether the subsequent(second) arrest, its incidental search, and the strip search were unlawful. I again note that Mr. Mayes contested the strip search only onthe basis that it was impacted by any breach I might find concerning the arrests and incidental searches. CONCLUSION [49] I conclude that Cpl. Veller was lawfully in a position to immediately, inadvertently, and visually observe the plastic bagcontaining drugs in plain view. Consequently, he formed the necessary reasonable and probable grounds to arrest Mr. Mayes.

He waspermitted to open the car door and view it more closely regarding its quantity; arrest Mr. Mayes; and eventually seize both bags.

Theseizure of the two bags of drugs was lawful. [50] It is unnecessary for me to consider the remaining issues: i.e. whether opening the car door was an unlawful search incident tothe first arrest, the lawfulness of the second arrest, the subsequent vehicle search, and the strip search. [51] The evidence of the drugs (crystal methamphetamines and the heroin), as well as other items seized by the police, is admissibleat trial. [52] It is my understanding that counsel have agreed that any admissible evidence heard on this voir dire will be admitted at trial,without the need to recall the witnesses who testified on the voir dire. ___________________________ The Honourable Judge D.

Gaffar Provincial Court of British Columbia