A Dartmouth man’s charter rights were violated when he was stripsearched by police during a drug raid on his apartment in February 2016, a Nova Scotia Supreme Court judge has ruled.
Justice Michael Wood, in a written ruling released Monday, said both the decision to conduct a strip search of Jason Kyle DeYoung and the manner in which it was carried out were unreasonable.
“The Crown has not provided sufficient justification for the police actions,” Wood said.
The judge excluded crack cocaine found during the strip search from evidence at trial, and the Crown subsequently withdrew a charge of possession for the purpose of trafficking.
“In reaching my conclusion that the search was unreasonable, I am not suggesting that (the officers) were acting capriciously or in bad faith,” Wood said. “The evidence suggests a lack of understanding of the care that must be taken before any strip search is undertaken.”
On the evening of Feb. 5, 2016, police executed a search warrant at DeYoung’s apartment in relation to an allegation that he possessed cocaine for the purpose of trafficking.
The officers who were going to be involved in the search gathered for a briefing about an hour beforehand and were assigned various roles.
At least eight officers entered the apartment without notice at 6:40 p.m. DeYoung was alone in the kitchen and was quickly located by the two officers tasked with arresting him and removing him from the premises.
When the officers yelled at DeYoung to show his hands, he appeared to be in shock and overwhelmed by the police presence, the judge was told during a voir dire.
One of the officers struck DeYoung on one of hislegs with his police baton, causing him to go to thefloor on his stomach with
his arms underneath him. The other officer then punched DeYoung in his side twice in order to get him to show his hands.
DeYoung was handcuffed and the officers began walking him out of the apartment to take him to the police station for booking. As they neared the door, another officer involved in the search informed them that DeYoung, according to a confidential source, was known to carry cocaine.
The two arresting officers had a brief discussion and decided to conduct a strip search of DeYoung before transporting him.
DeYoung was taken into his bedroom and told there was going to be a strip search. The door to the room was closed, his shirt was lifted, and his pants and underwear were pulled down. One of the officers punched DeYoung in the buttocks several times to “distract him” during the stripsearch.
That officer removed a plastic bag from between DeYoung’s buttocks and scrotum. The contentswere tested and determined to be crack cocaine.
While the two officers were in the bedroom with DeYoung, another officer heard what he thought was a commotion in the room and opened the door. He said DeYoung had no shirt on and his pants and underwear were pulled down, although he did not see his genitals. Other officers were at the door and could look into the room.
The strip search lasted one to two minutes and DeYoung was dressed and removed from the premises while other officers continued to search the apartment. The period of time from police entry to seizure of the bag of cocaine was recorded as being five minutes.
In his decision, Wood said when a person is lawfully arrested, police have the power to conduct an incidental search as a part of the process.
“This authority does not extend to strip searches,which must be justified on additional grounds,” the judge said. “The burden is on the Crown to prove those grounds on a balance of probabilities.”
The police officers testified that they had concerns for DeYoung’s health if there were drugs in a bag that could burst inside his body. They also said they wanted to preserve evidence and keep him from inserting drugs in his rectum during the trip to the station.
But the judge ruled the police did not have reasonable and probable grounds to conclude it was necessary to strip-search DeYoung at the apartment.
Wood also took issue with the manner in which the strip search was conducted, saying it took place in a highly charged atmosphere and exposed a naked DeYoung to other eyes.
“In addition to a violation of personal integrity, there has been a serious invasion of the sanctity of Mr. DeYoung’s home,” he said.
“If the officers in this case had taken the time to consult with superiors, evaluate the reliability of the source information . . . , assess the results of the search of the apartment and consider what other options might be available, they may well have concluded that a strip search was not necessary.
“If one was required, it could have taken place at the police station in a planned fashion with no possibility of interruption. There could have been a discussion with Mr. DeYoung about what was going to happen in an effort to obtain his consent and co-operation.”
DeYoung, 31, was convicted on simple possession charges involving small amounts of other drugs found in the apartment and sentenced to time served. He remains in custody on unrelated charges, including uttering threats and assault with a weapon.