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nrcommander > test 1 S+S > Flashcards

test 1 S+S Flashcards

1
Q

what is Section 8 in the criminal code?

A

everyone has the right against unreasonable search and seizure.

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2
Q

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

A

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.

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3
Q

what makes a search reasonable?

A

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

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4
Q

criteria for infringement:

A

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.

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5
Q

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

A

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?

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6
Q

what is the definition of search?

A

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

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7
Q

What is the definition of Seizure?

A

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

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8
Q

Expectation of privacy; 7 things to think of:

A
  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

  1. the existence of the subjective expectation of privacy(what the person thinks their expectation of privacy is)
  2. the objective reasonableness of that subjective belief to privacy. (what a reasonable person would think the expectation of privacy would be)
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9
Q

what are the three Privacy zones:

A

personal

Spatial territorial

informational

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10
Q

explain the personal privacy zone:

A

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
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11
Q

Explain spatial/ territorial privacy zone:

A

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

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12
Q

Explain informational privacy zone:

A

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

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13
Q

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

A

Criminal code

CDSA

Common Law and Case Law

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14
Q

Any search without judicial authorization is :

A

presumed unreasonable until deemed reasonable by the courts

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15
Q

10 warrantless search authorities:

A
  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
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16
Q

what do we look for in searches incident to arrest?

A

the most common search for police

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

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17
Q

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

A
  1. A lawful arrest
  2. Search must be conducted incident to arrest
  3. Search must be conducted in a reasonable manner
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18
Q

Conditions for search incident to arrest:

A

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

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19
Q

What area can we search incident to arrest?

A

Immediate surroundings.

whatever is reasonably considered immediate surroundings.

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20
Q

search incident to detention:

A

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

21
Q

Six conditions for consent searches:

A
  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.
22
Q

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

A

no

23
Q

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

A

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

24
Q

can consent be taken from a third party?

A

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

25
Q

Plain View Doctrine:

A

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

26
Q

what is required for plain view doctrine:

A

Officer is lawfully present

The discovery of the objects was inadvertant

Must be immediately apparent that the object of seizure is subject to seizure

27
Q

Can Plain view be used to extend a search?

A

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

28
Q

how is Plain View Docterine tied in with warrant searches?

A

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
29
Q

Abandoned Property search authority:

A

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

30
Q

Exigent circumstances:

A

something that requires immediate action or aid

falls under two categories:

  • Preservation of life
  • Security of property
31
Q

Exigent circumstances section 529.3 of Criminal Code:

VERBATEM

A

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

32
Q

Exigent circumstances s.487.11 of CC

A

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

33
Q

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

A

loss

removal

Destruction

or disappearance

34
Q

CDSA exigent circumstances:

A

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.

35
Q

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

A

to Identify the driver

check the registration of the vehicle

sobriety of the driver

vehicle soundness

36
Q

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

A

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

37
Q

Weapon and Firearm searches: section 117.02 (1)

A

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

38
Q

Weapons and Firearm searches: Section 117.04(1)

A

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)

39
Q

Weapons and Firearm searches: Section 117.04(2)

A

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

40
Q

Implied License:

A

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

41
Q

what is the Criminal Code definition to dwelling house?

A

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

42
Q

5 exceptions to entry warrants:

A

Exigent Circumstances

Hot pursuit

Informed Consent

Police Lawfully Positioned

Suspect in a non-dwelling house

43
Q

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

A

Notice of presence

Notice of authority

Notice of purpose

44
Q

Hot pursuit:

A

“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”

45
Q

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

A

consent must be:

expressed or implied

voluntary

Must ID as a Police Officer

Reason for entry must be clear

46
Q

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

A

does the suspect have a PRIVACY INTEREST in this dwelling?

Does the person I’m asking consent from have the AUTHORITY to provide it

47
Q

Police Lawfully Positioned:

A

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

48
Q

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

A

RG for arrest

RG they are in the premises

Proper annoucement on entry

49
Q

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

A

search incident to arrest

Plain View Doctrine

S489(2) of the criminal code.

nrcommander (27 decks)

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