Search & Seizure Flashcards
What are the two principles of Search and Seizure?
(1) Investigate crime and keep society safe
vs.
(2) Rights of individuals to be secure in legitimate private affairs
R v. Grant
(1) seriousness of the charter infringement
(2) impact of breach on the accused
(3) society’s interests
*** court must balance all 3 lines of inquiry to determine, whether in all circumstances, admission of the evidence would bring the administration of justice into disrepute
What is the 7 step Edwards Test?
(1) Party present?
(2) Party have possession of property
(3) Party have ownership
(4) Party have historical use
(5) Party able to regulate access
(6) Party subjective expectation of privacy
(7) Objective reasonableness of the expectation
What types of law will justify a search?
(1) Statute Law
(2) Common Law
(3) Case Law
The Waterfield Test
(1) conduct of police - duty imposed by law
(2) justified use of powers associated with duty
R. v. Wills
Consent must meet several stringent requirements. What are they (6)
(1) Consent
(2) giver had the authority
(3) consent voluntary
(4) aware of right to refuse
(5) aware of the nature of the police conduct
(6) aware of potential consequences
R. v. Borden (11 Steps) - Consent
(1) consent expressed or implied
(2) giver had authority to give consent
(3) consent voluntary
(4) aware of right to refuse
(5) aware of the nature of police conduct
(6) aware of potential consequences
(7) must be told need not consent
(8) know evidence can be used
(9) consent can be withdrawn
(10) limited use of consent and s. 487.09 destruction/retention orders (DNA destruction/post acquittal)
(11) consent and retention
Abandonment
(1) used to obtain info to supplement RG for a warrant
(2) No reasonable expectation of privacy to something that is abandoned
(3) Cannot enter someone’s property for the purpose of seizing their garbage to search it. Once at the curb it is abandoned
eg: Does a person in custody have a reasonable expectation of privacy when they discard something, or is it considered abandoned?
PERSON IN CUSTODY HAS A REASONABLE EXPECTATION OF PRIVACY. NOT CONSIDERED ABANDONED
Are bodily substances left at the hospital considered abandoned?
NO
What is the Plain View Doctrine?
(1) Power to seize
(2) Limited to visible items
(3) does not allow an exploratory search
What are the 3 conditions that must be satisfied for any plain view seizure?
(1) Lawful authority to search
(2) evidence is immediately apparent as constituting a criminal offence
(3) discovered inadvertently
Implied licence to knock?
(1) communicate
(2) occupants waived their reasonable expectation to privacy
(3) No search
Police may step onto private property in limited circumstances. What are they?
(1) Investigation based on RG
(2) Not a fishing expedition to find out what is going on inside
(3) Not based on a warrant in which RG were illegally obtained
s. 529.3(1) Exigent Circumstances DWELLING HOUSE
May enter a dwelling without warrant to arrest or apprehend if?
(1) Reasonable Grounds
(2) Person present in dwelling house
(3) Warrant not practicable due to exigent circumstances
s. 529.3(2) Exigent Circumstances DWELLING HOUSE
Exigent circumstances include circumstance in which a police officer has?
(1) RG to SUSPECT entry necessary to prevent BODILY HARM or DEATH
(2) RG to BELIEVE that evidence related to indictable offence will be destroyed
***Once dwelling and occupants have been secured, discontinue search (warrant must be obtained)
In regards to Exigent Circumstances, police must articulate what?
(1) What the exigent circumstance were
(2) How the exigent circumstance made it impracticable to get a warrant
