Search and Seizure Flashcards
Reasonable Expectation of Privacy (REOP)
R v Edwards
- Reasonable Expectation of Privacy is to be determined on the basis of the totality of the circumstances in each case
- The SCC developed a 7-step test to determine if someone has a reasonable expectation of privacy. This is based on the person not the place.
- Edwards: drug dealer arrested by police, police knew he had more product at his gfs house, officers went to house and gf refused entry, officers said we’re going to get a warrant and come in anyway so she lets them in and they find the drugs and arrest, Edwards says not fair because he had reasonable expectation to privacy at gfs house
The 7 Step Test (Edwards Test)
- Was the party present at the time of the search?
- Did the party have possession or control of the property or place searched?
- Did the party have ownership of the property?
- Did the party have historical use of the property?
- Did the party have the ability to regulate access, including right to admit or exclude others?
- Did the party have the existence of a subjective expectation of privacy?
- The objective reasonableness of the expectation
used to measure someones expectation of privacy
officers worry about 1-5
6-7 are subjective
Lines of Inquiry Under s.24 (2) Charter
R v. GRANT - psychological detention
Court takes into consideration if evidence should be admissible:
1. The seriousness of the Charter-infringing state conduct
2. The impact of the breach on the accused’s Charter-protected interests
3. Society’s interests in the adjudication of the case on its merits
EVERY SEARCH IS UNREASONABLE UNLESS JUSTIFIED BY LAW
- What types of law will justify a search?
- Statute Law - Criminal Code, CDSA, LLCA, HTA, Cannabis Control Act. (warrants, plain view doctrine)
- Common Law – incident to arrest, plain view doctrine
- Case Law – consent search
R v COLLINS
a search will be reasonable if, it is (A.R.M)
1. authorized by the law
2. the law must be reasonable
3. the manner in which the search was carried out was reasonable
What makes a search incident to arrest LAWFUL?
- arrest must be lawful
- search must have been conducted as an incident to a lawful arrest (immediately after)
- manner in which the search was conducted must be reasonable
Search Incident to Arrest
- must be conducted for a valid purpose and must be carried out in a reasonable and proportional fashion
- must be an articulable nexus between the nature of the search and the offence for which the detainee was arrested
- police are not obliged to suspend a search incident to arrest until the person arrested has had an opportunity to receive legal advice
What can you search for?
W.E.E
Weapons
Evidence
Means of Escape
Strip Search Requirements
REAR
Reasonable grounds
Exigent Circumstances (can’t wait for warrant)
Availability of procedure to obtain a search warrant
Rights to Counsel
Strip Search
- a strip search refers to the removal or rearrangement of some or all of someone’s clothing to allow a police officer to visually inspect buttocks, genitals breast or undergarments.
- It is typically done when an accused person is being booked or brought into the station and it’s often justified by police as necessary to recover, hidden weapons or drugs, and to protect the accused other inmates or officers.
Strip Search Steps
- Must be conducted in a reasonable manner
- As a general rule should be conducted at the police station in a private location
- Ensure the health and safety of all involved
- Should be authorized by a police officer acting in a supervisory capacity
- Search should be conducted by officers of the same gender
- Number of police officers involved in the search be no more than reasonably necessary in the circumstances
- Minimum amount of force necessary to conduct the strip search
- Search to be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time
- Strip search involves only a visual inspection of the arrestees genitals and anal areas without physical contact
- If visual inspection reveals the presence of a weapon or evidence in a body cavity detainee is to be given the option of removing the object himself or of having the object removed by a trained medical professional
- Proper record to be kept of the reasons for and the manner in which the strip search was conducted
SEARCH ELECTRONIC DEVICES – HIGH expectation of privacy
Prompt cell phone searches incident to arrest may serve important law enforcement objectives:
- Identify and mitigate risks to public safety
- Locate firearms/stolen goods/evidence (preserve evidence)
- Identify accomplices and prevent suspects from evading police
- Warn officers of possible/impending danger
- Allow officers to follow leads promptly
Cell phone searches also have an element of urgency, which supports the extension of the power to search incident to arrest.
Four main criteria have been set out in R. Vs. FEARON in order for any search of the cell phone to be lawful:
- The arrest itself must be lawful
2. The search must truly be incidental to arrest, meaning the search must be done promptly upon arrest and for a valid purpose ( preserving / locating evidence) - The nature and extent of the search must be tailored to its purpose. Only recently sent emails, text messages, phone calls and photographs
- Detailed notes must be taken and include when and how the phone was examined. You MUST include:
- Applications searched
- Time of search
- Duration of search
- Purpose of search
What else does search incident to arrest include?
In addition to the person, you may search within an arms reach of where they were (area that person has physical control over).
Search Residences
When a person is arrested inside a residence in addition to search of the person incident to arrest police may also search the surrounding area of the arrest (within the person’s physical control) to:
- guarantee the safety of the police and arrested person,
- prevent the person’s escape or
- provide evidence against them
