Fed Law - Search and Seizure

Question 1

Search/Seizure Without Warrant

3

Answer 1

1 - Articulable public safety concern AND
2 - Articulable belief firearms etc will be found in place to be searched AND
3 - Articulable belief that there is a possible danger to the safety of one or more persons necessitating the search be done without warrant (exigent circumstances)

Question 2

What types of Law justify a Search?

3

Answer 2

1 - Statute Law - C.C., LLA, HTA, CDSA, warrants and plain view doctrine
2 - Common Law - Incident to arrest, plain view doctrine
3 - Case Law - Consent search

Question 3

Hunter Standard

DEFN

Answer 3

All warrantless searches are Prima Facie unreasonable
UNLESS
warrant or authority tell otherwise

Question 4

R v. Edwards

Reasonable Expectation of Privacy
7 Steps - PPO-HAPO

Answer 4

P - Present at time of Search
P - Possession or control of property/place searched
O - Ownership of property searched
H - Historical use of property searched
A - Ability to regulate access, including right to exclude others of property searched
P - Existence of subjective expectation of Privacy
O - Objective reasonableness of expectation

Question 5

Reasonableness of Search

R v. Collins
3

Answer 5

1 - Is the search authorized by law?
2 - Is the law itself reasonable?
3 - Was the manner in which the search was carried out reasonable?

Question 6

Strip Search

11

Answer 6

1 - Reasonable Manner
2 - Conducted at Police Station
3 - ensure Health and Safety
4 - authorized by a SUPERVISOR
5 - conducted by the same GENDER
6 - # of PO should be no more than reasonable
7 - Min force necessary to conduct search
8 - conduct search as QUICKLY as possible
9 - VISUAL inspection of the genital area only
10 - MEDICAL professional only can remove evidence from body cavity
11 - proper RECORD to be kept of the search

Question 7

Waterfield Test

2

Answer 7

1 - Does the conduct of the police fall within the general scope of any duty imposed by stature or recognized common law?
2 - Does any conduct, if found to be within the general scope of such a duty, involve the justified use of powers associated with the duty?

Question 8

R v. Kokesh

Answer 8

• PO are not allowed to search ‘fishing’ expeditions or gather evidence with the implied licence to knock

Question 9

Implied licence to Knock

DEFN

Answer 9

• Anyone, including PO, have implied invitation to knock on the front door of a dwelling to communicate information, NOT to gather evidence

Question 10

Search Incident to Arrest

3

Answer 10

1 - Arrest must be lawful
2 - Purpose of search myst someway be related or connected
3 - Search must be conducted in reasonable manner

Question 11

Spatial Limits/Conditions

Answer 11

• Can search IMMEDIATE area where the person was arrested, thats all

Question 12

3 Things you are allowed to search for Incident to Arrest

Answer 12

1 - Safety (weapons)
2 - Means of Escape
3 - Evidence

Question 13

Consent Search
6 Steps - CAV ARC

R v. Willis

Answer 13

1 - There was CONSENT, expressed of implied
2 - Giver of consent had AUTHORITY to give consent
3 - Consent was VOLUNTARY
4 - Giver of consent was AWARE of nature of PO conduct to which they were consenting to
5 - Giver of consent was aware of RIGHT to REFUSE consent
6 - Giver of consent was aware of potential CONSEQUENCES of consent

Question 14

Abandonment

Answer 14

• Can be used to obtain info to supplement RG for a warrant
• no reasonable expectation of privacy to something abandoned
• Cannot enter private property for the purposes of seizing to search, however once it is off private property it is abandoned (garbage on side of the road)

Question 15

Plain view Doctrine
s. 489(2)
LIC

(3)

Answer 15

1 - Must be LAWFULLY present - by warrant or otherwise
2 - Discovery was INADVERTENT
3 - Articles discovered were CLEARLY visible, you can use a flashlight

Question 16

Exigent Circumstances

Dwelling House
s. 529.3(1)

(3)

Answer 16

May enter without warrant to arrest/apprehend if:
1 - RG
2 - Person is present in dwelling
3 - Warrant is not practical due to exigent circumstances

Question 17

Exigent Circumstances

DEFN

Answer 17

When a PO has:

• RG to suspect entry necessary to prevent IBH or death
• RG to believe that evidence related to commission of an indictable offence is present in the dwelling and entry is necessary to prevent the imminent loss/destruction

Question 18

Exigent Circumstances

R v. Godoy

Answer 18

• Disconnected 911 call, PO showed up to the house, accused refused entry, PO entered anyway, court deemed entry was justified

Question 19

Inventory Search

Motor Vehicle

Answer 19

• Can search vehicle is flowed directly from lawful arrest
• can check trunk if reasonably believed more evidence is likely to be found there
• purpose of inventory search is to protect property in the car of accused