Pre-Trial Procedures Search and Seizure

 The law seeks to balance individual’s right to privacy and need for police to conduct a thorough investigation.  S.8 Charter states “everyone has the right to be secure against unreasonable search or seizure”.  Police in most cases need a WARRANT (legal document issued by the court giving police authorization to search a specific location and seize specific evidence) before conducting a search.

Obtaining Search Warrant  Police swear an information before a justice of the peace or judge which specifies the crime, items police are looking for, and the reasonable and probable grounds police have for believing those items will be found in a specific location on one’s property.  TELEWARRANTS allow warrants to be obtained quickly by telephone, fax or . Police follow up with a written report stating when and where warrant was executed and listing what was seized.

Using a Search Warrant  Unless otherwise stated, a warrant can only be used to search a residence on the date indicated between 6 a.m. and 9 p.m.  The warrant will specifically outline areas to be searched and items being searched for. Only items on the warrant may be seized, unless other illegal items used in or obtained by the commission of the crime are in plain sight.

Search Laws and Rules  Police can demand entrance into a residence when they have a search warrant.  If permission is refused by the occupant or no one is home, they are permitted to break in but they are liable for any excessive force used.  The occupant of the residence should ask to see copy of warrant, if details not correct or document not available they have right to refuse admittance.

 Police do not have to obtain warrant to search someone they have just arrested as long as: the arrest is legal, the search is connected to the arrest, and the manner in which arrest is carried out is reasonable.  Police will typically do a cursory search or ‘pat down’ immediately after arrest to check for concealed weapons, other objects which could aid in one’s escape, or concealing evidence.

 Unless suspected of impaired driving, an arrested person does not have to supply police with a breath, blood, urine, or DNA sample (unless compelled by warrant).  However even with a warrant the accused is able to confer with a lawyer before providing a sample.  Search warrants can also allow police to use video surveillance, tracking devices, and telephone recorders to intercept private conversations

Exceptions to Search Laws  S.529(3) of Criminal Code, two exceptions apply where pressing circumstances make it difficult to obtain search warrant to search a residence in time:  Under the belief that entering the residence is necessary to prevent imminent injury or death to a person;  Or believe that there will be destruction of evidence relating to an indictable offence.

Drug and Alcohol Exceptions  Under the Controlled Drug and Substances Act, police can search any premises (other than a residence but including automobiles) for illegal drugs without warrant.  Liquor laws also give police right to search automobile for illegal alcohol without first obtaining warrant

Weapons Exceptions  Any premises (other than a residence but including automobiles) for illegal drugs without warrant for illegal weapons.

Exceptions continued…  Can search an automobile without first obtaining a warrant if they believe (reasonable and probable grounds) a criminal offence is in process of being committed or has been committed.  The police can search any person they believe to be in possession of illegal drugs, alcohol, weapons, without a warrant.  Otherwise, warrant must be obtained unless accused voluntarily agrees to being searched.

Summary  Searches must be authorized by statute or common law.  Police have no general right to search without reasonable and probable grounds  Search warrants issued by justice of the peace or judge (need reasonable and probable grounds that there was a commission of an offence)

Purpose of Conducting Searches  To ensure safety of the police and public  To prevent destruction of evidence  To discover evidence  Watch a summary: Y

R v. Caslake  Natural Resources Officer found Caslake in bushes on the side of the road, asked what he was doing  Caslake said he was relieving himself  Later officer went back and found 4 kilos of marijuana  Arrested Caslake  Searched his car and found $1400 cash and found two packages of cocaine  Was his search reasonable?