test 1 S+S

Question 1

what is Section 8 in the criminal code?

Answer 1

everyone has the right against unreasonable search and seizure.

Question 2

what is section 24(1) and 24(2)?

Answer 2

the right to appeal to the courts if you think your rights have been infringed upon, and the exclusion of evidence if said right have been proven to be infringed upon in court.

Question 3

what makes a search reasonable?

Answer 3

the law itself is reasonable

the manner in which the search was carried out was reasonable.

A specific statute or common law rule authorizes the search.

the search must be carried out in accordance with the procedural and substantive requirements

the scope of the search must be limited to the area and those items for which the law has granted authority to search

Question 4

criteria for infringement:

Answer 4

the seriousness of the charter infringement

the impact of the breach on the charter protected interests of the accused

society’s interest in the adjudication of the case on its merits.

Question 5

what case law came from R vs buhay? did a search violation occur?

Answer 5

was the search conducted by a government agent?

Did the person have a reasonable expectation of privacy in the place/ thing searched?

Was sear/seizure conducted by the police unreasonable?

Question 6

what is the definition of search?

Answer 6

not found in the criminal code

in R vs Evans; search is defined as:

-Looking for things, including spoken words, to be used as evidence

Question 7

What is the definition of Seizure?

Answer 7

not found in Criminal Code

In R vs Dyment, defined as:

-The taking of a thing from a person by a public authority without that person’s consent

Question 8

Expectation of privacy; 7 things to think of:

Answer 8

1. the person’s presence at the time of the search
2. Possession or control of the property or the place
3. Ownership of the property of place
4. Historical use of the property or place

5 the ability to regulate access, including the right to admit or exclude others from the place or from use of property

6. the existence of the subjective expectation of privacy(what the person thinks their expectation of privacy is)
7. the objective reasonableness of that subjective belief to privacy. (what a reasonable person would think the expectation of privacy would be)

Question 9

what are the three Privacy zones:

Answer 9

personal

Spatial territorial

informational

Question 10

explain the personal privacy zone:

Answer 10

the more serious an affront to human dignity, the greater the privacy interest. the greater intruision into a person’s dignity, the greater the justification that will be required.

examples of personal searches

• Frisk or Pat downs
• Skin searches
• Penile Swabs
• Body Cavity Searches

Question 11

Explain spatial/ territorial privacy zone:

Answer 11

involves a person’s expectation of privacy in a place or surroundings such as a home, vehicle or buisness.

Question 12

Explain informational privacy zone:

Answer 12

places where personal information is retained, The more personal, the higher the expectation of privacy

Question 13

where can we find our authorities to search without a warrant?

Answer 13

Criminal code

CDSA

Common Law and Case Law

Question 14

Any search without judicial authorization is :

Answer 14

presumed unreasonable until deemed reasonable by the courts

Question 15

10 warrantless search authorities:

Answer 15

1. Incident to arrest
2. Incident to investigative detention
3. Consent searches
4. Plain view doctorine
5. Abandoned property
6. exigent Circumstances
7. Motor Vehicle Searched
8. Crime Scenes
9. Firearms and Weapons
10. Implied licence

Question 16

what do we look for in searches incident to arrest?

Answer 16

the most common search for police

we search for: weapons, items to facilitate escape and evidence related to the offence

Question 17

for search incident to arrest to be reasonable it had to be:

Answer 17

1. A lawful arrest
2. Search must be conducted incident to arrest
3. Search must be conducted in a reasonable manner

Question 18

Conditions for search incident to arrest:

Answer 18

Power does not impose a duty (still have to have a reason to search and must know what that reason is)

Search must be for a valid objective (weapons, evidence, escape)

Search can’t be abusive in fashion

Question 19

What area can we search incident to arrest?

Answer 19

Immediate surroundings.

whatever is reasonably considered immediate surroundings.

Question 20

search incident to detention:

Answer 20

detention must be lawful

a search must be for legitimate safety/ protective concern

“protective pat-down”

may consider immediate surroundings but you have to be able to articulate why

Question 21

Six conditions for consent searches:

Answer 21

1. Consent was expressed or imlplied
2. Granted by person in authority to give consent
3. Consent was given freely and voluntarily, not the product of police oppression or coercion
4. Aware of police conduct to which being asked to consent
5. Aware of Right to Refuse or Revoke consent at any time
6. Aware of potential consequences of the search.

Question 22

can the withdrawal of consent be used as reasonable grounds to justify a search?

Answer 22

no

Question 23

if consent is provided and grounds to arrest come to light, what do you do?

Answer 23

arrest and then search incident to arrest… can’t withdraw consent at that time.

Question 24

can consent be taken from a third party?

Answer 24

no, they are not the ones with the reasonable expectation of privacy

Question 25

Plain View Doctrine:

Answer 25

Applies to objects falling in plain view of an officer, which are seized as evidence. also found in section 489 of CC

Question 26

what is required for plain view doctrine:

Answer 26

Officer is lawfully present The discovery of the objects was inadvertant Must be immediately apparent that the object of seizure is subject to seizure

Question 27

Can Plain view be used to extend a search?

Answer 27

no, at that point.... arrest and search incident to arrest

Question 28

how is Plain View Docterine tied in with warrant searches?

Answer 28

For warrant searches, we can seize anything that is not on the warrant itself if we have reasonable grounds to believe that the objects have been: - Obtained by the commission of an offence - Used in the commission of an offence - Will afford evidence in respect of an offence

Question 29

Abandoned Property search authority:

Answer 29

the goal of lost or stolen property is to bring it back to its rightful owner we may search to the extent which is reasonable to return to owner

Question 30

Exigent circumstances:

Answer 30

something that requires immediate action or aid falls under two categories: - Preservation of life - Security of property

Question 31

Exigent circumstances section 529.3 of Criminal Code: VERBATEM

Answer 31

exigent circumstances include circumstances in which the peace officer (1) has reasonable grounds to suspect entry into the dwelling-house is necessary to prevent bodily harm or death to any person. (2) Has Reasonable Grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and entry into the dwelling-house is necessary to prevent the imminent loss or destruction of evidence

Question 32

Exigent circumstances s.487.11 of CC

Answer 32

security of property Permits Police to search any place, including a dwelling house, without warrant so long as: - Conditions for obtaining warrant exist. - But by reasons of exigent circumstances it would be impractical to obtain a warrant conditions: RG exist that the item is: - relevant to any offence under any federal statute that has been suspected to have been committed, or - Believed to afford evidence with respect to the commission of any offence, or - Will reveal the whereabouts of a person who is believed to have committed any criminal offence, or - Believed to be intended to be used for the purposes of committing any offence against a person, for which the offender may be arrested without warrant, or - Offence related property

Question 33

exigent circumstances will generally exist if _____ _______ _________ ________ of evidence, if the search is delayed

Answer 33

loss removal Destruction or disappearance

Question 34

CDSA exigent circumstances:

Answer 34

exigent circumstances requires a belief based on reasonable grounds, that there is an imminent danger of loss, removal, destruction or disappearance of the drugs, if the search is delayed to obtain a search warrant.

Question 35

what reasons can we pull over a vehicle without warrant and without the need of an HTA offence?

Answer 35

to Identify the driver check the registration of the vehicle sobriety of the driver vehicle soundness

Question 36

can we use t-stops as a disguise of a criminal investigation?

Answer 36

no, under plain view docterine... we can only begin a criminal invest if we see something is plain view withough manipulating the obstruction of views of objects in the vehicle

Question 37

Weapon and Firearm searches: section 117.02 (1)

Answer 37

RG to believe a weapon was used in an offence Evidence of the offence likely to be found on a person, in a vehicle or other place/premises except dwelling houses Conditions for a warrant exist, but for reasons of exigent circumstances, impractical

Question 38

Weapons and Firearm searches: Section 117.04(1)

Answer 38

Justice may issue a warrant; no offence required Is not desireable in the intrests of the safety of the person or any other person for them to possess the weapon Can search any building, receptable or place (ie Dwelling house)

Question 39

Weapons and Firearm searches: Section 117.04(2)

Answer 39

same as subjection 1: Justice may issue a warrant; no offence required Is not desireable in the intrests of the safety of the person or any other person for them to possess the weapon Can search any building, receptable or place (ie Dwelling house) BUT can search/seize the weapon(s) without a warrant if a danger to the person or to any other person exist we must hold a disposition hearing within 30 days

Question 40

Implied License:

Answer 40

common law where we can go up to someones house and knock only for the purpose of communication (not in hopes to seeing evidence)

Question 41

what is the Criminal Code definition to dwelling house?

Answer 41

means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes (a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passageway, and (b) a unit that is designated to be mobile and to be used as a permanent or temporary residence and that is being used as such residence

Question 42

5 exceptions to entry warrants:

Answer 42

Exigent Circumstances Hot pursuit Informed Consent Police Lawfully Positioned Suspect in a non-dwelling house

Question 43

what three parts do we need to do when entering on Exigent circumstances:

Answer 43

Notice of presence Notice of authority Notice of purpose

Question 44

Hot pursuit:

Answer 44

"continuous pursuit, conducted with reasonable diligence, so that the pursuit and the capture along with the commission of the offence may be considered as forming part of a single transaction"

Question 45

When no entry warrant is needed and you use informed consent, consent must be:

Answer 45

consent must be: expressed or implied voluntary Must ID as a Police Officer Reason for entry must be clear

Question 46

what are the two questions you must ask yourself prior to securing consent?

Answer 46

does the suspect have a PRIVACY INTEREST in this dwelling? Does the person I'm asking consent from have the AUTHORITY to provide it

Question 47

Police Lawfully Positioned:

Answer 47

if you are lawfully positioned in a residence, and grounds to arrest a person become established, there is no requirement to leave to obtain a warrant

Question 48

what are the three criteria needed to make an arrest in a non-dwelling house?

Answer 48

RG for arrest RG they are in the premises Proper annoucement on entry

Question 49

what are the authorities that permit the seizure of evidence inside the house when making a lawful arrest?

Answer 49

search incident to arrest Plain View Doctrine S489(2) of the criminal code.