The Charter: Search and Seizure (Part 3)

Posted by  on November 17, 2020
The Charter: Search and Seizure (Part 3)

Blog by Rudrakshi Chakrabarti and Arun S. Maini

Can the Police Seize Evidence Without a Warrant?

The short answer is Yes.

A police officer can seize anything that the officer believes on reasonable grounds was:

  • obtained by crime;
  • used in a crime; or
  • affords evidence of a crime.

The prerequisite is that the search that leads to that seizure (whether with or without a warrant) must be lawful.

Can the Police Search For Evidence Without a Warrant?

Yes they can- but only in certain situations, such as police accidentally coming across evidence of a crime, or in an emergency.

Here is a list of various types of acceptable warrantless searches, followed by a short description of each:

  • consent search
  • search incident to investigative detention
  • search incident to arrest
  • search of abandoned item
  • plain view search
  • exigent circumstances.

What is a Consent Search?

A consent search is one that you agree to. In order for you to agree to a warrantless search by police, you must have the authority to consent to it. For example, if you are the passenger in your friend’s car, and he steps out to buy cigarettes, you cannot tell police that it’s ok to look in the trunk.

In order to permit a consent search, the consent must be voluntary. In other words, the police cannot threaten you or make promises to induce you to agree to the search.

You must also know why the police want to search, and be told that you have the right to refuse to consent.

In addition to all of that, you must be told about the consequences of agreeing to a search. For example, that anything the police find can be used as evidence against you, or that if anything illegal is found, it could lead to criminal charges.

If any of these requirements are missing, the search might not be legally valid.

What is a Search Incident to Investigative Detention?

A search incident to an investigative detention is usually done for officer safety, in the context of a lawful detention. For example, police pull over a car with stolen licence plates. They ask the driver and passenger to step out of the car while they investigate. The police might do a pat-down search of the two suspects to make sure they are not carrying a weapon, before investigating further.

What is a Search Incident to Arrest?

A search incident to arrest is one that the police carry out in the immediate area of a lawful arrest. It can be the search of the individual being arrested; his car; or the backpack he is carrying, for example. This type of search is for safety (of the police or the public); to preserve evidence; or to uncover evidence.

The police do not need to have reasonable and probable grounds to believe that this search incident to arrest will yield such evidence. The police already have grounds to make an arrest, and this search authorizes a limited extension of the search, as long as there is a reasonable basis for it, such as necessity (safety) or a connection to the basis for the arrest. For example, if the police arrest you at the roadside for a DUI, they cannot go and search your house incident to that arrest.

What is a Search of an Abandoned Item?

If you throw something away, then usually you no longer have a reasonable expectation of privacy in relation that item. The police can seize it. But you must have intended to abandon it. So, for example, you’ve committed a robbery and you park the getaway car in a parking lot, planning to retrieve it tomorrow when the coast is clear. In that situation, you have not abandoned the car, and the police cannot search it under the guise of an abandoned item.

As another example, the police want to seize your DNA to see if they can connect you to a crime scene. While being interrogated by police at the station, you blow your nose and place the tissue in your pocket. The police cannot seize the tissue as an “abandoned” item. On the other hand, if you toss the tissue in the wastebasket on the way out, it’s fair game as an abandoned item over which you have given up your reasonable expectation of privacy.

What is a Plain View Search or Seizure?

A “plain view” search is one where the police see evidence of illegal activity in plain sight. For example, the police pull you over for a traffic violation, and when the officer approaches the driver’s side door, she sees a handgun on the passenger seat.

One reason why the search or seizure of evidence in plain sight is permissible is that by exposing the illegal item to passers-by, you are in effect giving up your expectation of privacy over that item.

The key requirements of a lawful “plain view” search and seizure is that the police must have the right to be there in the first place (so if they had no lawful reason to pull you over, the seizure of the gun might not be lawful). Also, the discovery of the evidence must be unintentional. If the police are planning to search you, they have to have a basis to do so and cannot randomly detain you in the hopes of finding some evidence in plain sight.

What Constitutes Exigent Circumstances?

Exigent circumstances exist where the situation calls for immediate and urgent police action to preserve evidence or avoid injury. The police need to have reasonable and probable grounds to believe that taking the time to obtain a warrant or conduct further investigation would compromise the life of an individual, or result in the destruction of evidence.

One example could be the police breaking down the door of a house to save a hostage in a kidnapping situation. Or chasing a suspect who is carrying a gym bag stuffed with drugs into the backyard of his house.

Can the Police Search the Contents of My Cellphone Without a Warrant?

Yes- up to a point. The police are entitled to do a cursory check of your cellphone or computer to see whether it contains the type of evidence they are looking for. But it cannot be a thorough investigation of the contents of the device- for that, they will need to get a separate warrant, unless the warrant already specifically authorizes a detailed investigation of the device.

The reason for that is that people have a strong expectation of privacy in their smartphones and computers. A warrantless search is usually limited in scope and time, often in a situation of urgency, and the laws that authorize such warrantless searches do not extend to a thorough search of those devices.

Can the Police Ask Me For My Password?

The police cannot force you to give them your cellphone or computer password, unless the court has authorized it in a warrant. They can ask you for it, but you do not have to give it to them. As with any other statement, you have the right to remain silent and are not obliged to cooperate with the police beyond the requirements in a search warrant or court order.

This is important because these days there are some devices, such as Apple iPhones, which cannot be opened without the password or very sophisticated technology, which many police forces do not possess. Knowing your rights in this regard can mean all the difference for you in a criminal case.

You can see Part 1 of our series on Search & Seizure here, and you can see Part 2 of our series on Search & Seizure here. In our next blogs, we will examine other issues related to search and seizure, such as:

  • What are other examples of a reasonable expectation of privacy?
  • What happens if the search or seizure was illegal?

If you or a loved one are facing criminal charges and need the advice of an experienced and skilled lawyer to help you through the legal process, call The Defence Group for a free consultation at 877-295-2830.

Rudrakshi Chakrabarti is a student at Windsor Law School

Arun S. Maini is a criminal lawyer and former prosecutor with 25 years of experience

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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