Warrantless Search – Searching the Suspect

Henry Waldock
Last updated: 2017.04.04

Contents

Principles

When you detain someone, you may search the person and the vicinity for:

When you arrest someone, you may search the person and the vicinity for:

Whether you search on detention or arrest, you must have some reason to suspect that the weapons or evidence you are looking for might be there.

Even when searching, protect the suspect’s privacy.  Strip searches should be conducted at a police station or other controlled and private place.

You may photograph suspects that you detain or arrest, but there is legal confusion around taking their fingerprints before charges are laid.


What you know about offences this person committed

What you can do about it

Nothing

Detain as a part of an organized law enforcement programme such as Counter-Attack or a seatbelt check

Stop for the purposes of checking vehicle safety and licencing.

- if you have reason to fear that the person you stopped might possesses weapons which pose a danger to you, you may frisk him/her for those weapons.

Presence in the area of a serious offence Detain to investigate - roadblock

- determine whether the person has information about the offence

- determine whether there is reason to suspect this person of involvement in the offence. (If so, move to the next box - Suspicion)

Suspicion - “Articulable Cause”

Detain to investigate

- you can ask for, but you cannot demand the suspect’s identity (unless you are investigating a driver for a motor vehicle offence)

- you can photograph the subject for the purposes of documenting who you stopped.

- if you have reason to fear that the person you stopped might possesses weapons which pose a danger to you, you may frisk him/her for those weapons.

- you can't search the suspect for evidence of the offence

Belief on Reasonable and Probable Grounds (Indictable, hybrid offence)

or

Find suspect committing a summary conviction offence

Arrest the suspect

- you can photograph the suspect
- you can search for the suspect and his or her vicinity for evidence of the offence, and for weapons which pose a danger to you


Detention on Reasonable Suspicion

You may lawfully detain a person if you have reasonable suspicion that the person is involved in an offence.  See Detention - What justifies a detention.

Searching a detained person: safety, not evidence

During such a detention, you may search the suspect for weapons if you have reason to fear the presence of weapons or other objects that pose you a risk.  You may not use this kind of search to obtain evidence against the suspect.  R. v. Mann 2004 SCC 52 R. v. Greaves 2004 BCCA 484   Ferris (1998) 126 CCC (3d) 298 (B.C.C.A.) Coates (2003 Ont C.A.).

If you search a detainee for evidence of an offence, having only suspicion, but not reasonable and probable grounds to believe, that the suspect participated in the crime, then the search is unlawful.   Chaisson 2006 SCC 11;  R. v. Calderon (2004 Ont.C.A.); R. v. Byfield, [2005] O.J. No. 228 (C.A.); R. v. Cooper, 2005 NSCA 47; R. v. Logan 2005 ABQB 321.

During such a search, for the purposes of officer safety, you may ask the suspect questions about the things you're worried about. But those questions must focus the suspect on the issue, and should not elicit evidence of the offence. Patrick, 2017 BCCA 57.

When searching a detained person for the purposes of officer safety, too much restriction on liberty may violate the suspect's right to be free from arbitrary detention. Don't handcuff unless you need to. Squires, 2016 NLCA 54

Even when releasing a prisoner, if you have reason to fear for your safety, you may search for weapons in the immediate vicinity.  Valentine, 2014 ONCA 147; Ferris (1998) 126 CCC (3d) 298 (B.C.C.A.).

If you search for officer safety, you must be able to explain in each case why this particular person, in these particular circumstances posed you or the people around you a risk.  Mann 2004 SCC 52.

You don't need to know in advance what kind of weapon you fear the suspect has, nor do you need specific evidence of hostility.  Crocker, 2009 BCCA 388.

In general, you may search only the person for weapons; but the greater the information you possess which indicates that weapons are present which truly pose a risk to you or people near you, the wider you can search.  Plummer, 2011 ONCA 350.

Safety search only when and as much as necessary to protect yourself

Safety searches may be done when "necessary" for officer safety, but not for mere convenience.  When you have practical alternatives to a frisk search, searching a suspect "for officer safety" breaches his s.8 rights.  Aucoin, 2012 SCC 66.

Therefore, if there are other practical and reliable ways to ensure safety than performing a warrantless search, then use them, or be ready to explain why you didn't. R. v. Batzer 2005 Ont CA.

Some suspects use their cell phones to summon malicious aid while you are dealing with them.  If you have reason to believe that a detained person might do this, you can seize the phone (but you can't search it without further grounds).  White, 2007 ONCA 318.

Detention can lead to Arrest

You can't stop and search a suspect for evidence of an offence unless you have grounds to arrest.  But you can stop a suspect for any offence you know about, including traffic infractions.  If that further information from that stop leads you to believe that the suspect committed another offence, then you can arrest and search.   R. v. Yague, 2005 ABCA 140.

Questioning & Identifying the Detained Person

When you detain a suspect, you may ask questions.   The suspect is not obliged to answer unless some statutory authority compels him.  But beware: in the absence of lawful authority, you can not compel a detained person to identify himself or herself.  Harris 2007 ONCA 574.

On the other hand if you have reasonable grounds to believe that the suspect lied to you, you may arrest for obstruction.  R. v. Greaves 2004 BCCA 484.  If you believe (on reasonable grounds) that the suspect lied about his or her identity, this justifies an arrest and a search for evidence of identity.  For example, after a police officer stopped Mr Burachenski, 2010 BCCA 159 for speeding, the driver provided no identifying documents.  The officer believed that the driver was lying to him, and searched the car for identification.  The court found this was justified.

Examples of lawful authorities which authorize you to demand identification include:

Apparently, if you do coerce a detained person to identify himself just for the general purpose of running his name through your databases, it's an unreasonable search.  Harris 2007 ONCA 574.

You can photograph a detainee.  Multani 2002 BCSC 68; Dilling 1993 BCCA; Acosta-Medina 2002 BCCA 33.  (Contra: Huynh 2010 BCSC 1553)

Arrest

If you have reasonable grounds to believe that a suspect committed a hybrid or indictable offence, you can arrest. s.495(1)(a).  But to arrest for a summary conviction offence, you must find the suspect committing it.  Janvier, 2007 SKCA 147

After a lawful arrest, you may search the prisoner and his vicinity to discover evidence relevant the offence for which you arrested, as well as for weapons.  Cloutier v. Langlois 1990 SCC; Caslake (1998 SCC).  As long as you had reasonable and probable grounds to believe that the prisoner committed the offence, you need only some articulable reason to believe that there may be evidence of the offence on or near the person in order to search.

Relevance may broaden the search.  For example in Chubak 2009 ABCA 8, police arrested the accused for possession of a prohibited weapon.  The circumstances suggested to the officers that Chubak possessed the weapon because he was a drug dealer.  The officer did not arrest Mr Chubak for drug offences, but he searched in Chubak's car for drugs.  A search incidental to arrest must seek out only evidence relevant to the offence.  Was this search lawful?  Yes: the presence of drugs would tend to prove a motive for possessing the weapon.  Therefore, drugs were relevant to the offence for which the officer arrested.

There is some authority to suggest that you can search a person for evidence before you arrest, as long as you have strong grounds to believe that the evidence is there.   Debot, [1989] 2 SCR 1140; Dubois 2004 BCCA 589; Sinclair 2005 MBCA 41. If you reach this stage in your investigation, Charter rights and a warning would be appropriate.  Although the Ontario Court of Appeal approved this approach (Polashek; Richards, 2015 ONCA 348), you must have very solid grounds for the search (eg Calderon 2004 Ont CA).

Delay searching incidental to arrest

How long after an arrest can you search the prisoner or his/her vicinity for evidence of the offence?

In Caslake (1998 SCC), police arrested the accused and seized his car.  They towed his car to a garage and searched it "incidental to arrest" 6 hours later.  The court found this search was proper.

After arresting Ms Ramos, 2011 SKCA 63, police did not search her purse for 11 days.  The court found this search was done "incidental to arrest".  It took a month to get around to a data-dump from Mr Hiscoe's 2013 NSCA 48 cell phone.  The court thought that was too long.

Because of this divergence of opinions, I am unsure how open-ended this power of search is.  I recommend commencing the search promptly after arrest.

Identity

On arrest, you are entitled to determine identity, which includes searching the suspect for evidence of identity.  s. 495 - s. 503 of the Criminal Code.  You are not required to guess whether you have the suspect's real identification, or some fake identification he carries for the purpose of misleading police officers.

A police officer stopped Mr Caprara (2006 Ont C.A.) for highway safety concerns.  Mr Caprara led the officer to believe that he was giving a false name, and so the officer arrested him for obstruction, and got his real name.  I think the officer learned Caprara was a drug dealer.  The officer then searched Caprara's vehicle for drugs and identification.  There was no lawful reason for the officer to search for drugs, but there was good reason to search for supplementary identification.  For that reason the drugs the officer found were admitted.  Mr Shankar's 2007 ONCA 280 case was very similar.

Safety

In Tuduce, 2014 ONCA 547, the officer's concern that the accused's wallet might contain a razor blade or similar small sharp object sufficed to permit him to skim through it.

In Majedi 2009 BCCA 276, the court found that after an arrest, police may search the prisoner and the prisoner's effects for anything that might pose a danger to people to whom the prisoner might be delivered.

This includes, apparently, even a Skittles container hidden in the suspect's crotch.  Abdo, 2009 ABCA 340.

Police can't strip-search a prisoner who is expected to be released shortly unless there are reasons to suspect that the prisoner possesses weapons, or (possibly) that the prisoner will mingle with other prisoners.  Vancouver (City) v. Ward, 2010 SCC 27.

Searching a Car After Arrest

The right to search "incidental to arrest" is not a blanket authority to search the vehicle of anyone you arrest.  R. v. Bulmer 2005 SKCA 90.  You need to be looking for evidence of the offence for which you arrested.  R. v. Rutten 2006 SKCA 17.

Arrests for weapons offenses may well justify a search of the trunk.  Alkins 2007 ONCA 264.

Fingerprints and Photographs

Courts disagree about the constitutionality of taking fingerprints before charges are laid.  The confusion is worst in BC, because the BCCA split 3 ways in Connors (1998 BCCA).

In Ontario, police arrested Mr Dore (Ont CA 2002) for a criminal code driving offence, and fingerprinted him.  However, the Crown approved only Highway Traffic Act charges.  Police kept the fingerprints on the FPS system anyway.  Later, police used the fingerprints to identify Dore as the perpetrator of a violent sexual assault.  Dore complained that police kept his fingerprints unconstitutionally.  Ducking past a series of cases, the Ontario Court of Appeal disagreed.

In B.C. there is much debate whether you can take fingerprints on arrest unless a charge has been laid. No: Nicholson (BCSC 1999); Temple 2005 BCSC 243; Shepherd 2010 BCPC 175. Yes: Chau, 2013 BCSC 176; Bishop 2013 BCSC 522; Gale, (BCSC 1997); Do 2002 BCSC 1889;  Le 2004 BCPC 122; Davis 2004 BCPC 534;  Vu 2007 BCPC 344; Vi 2008 BCPC 30.

But you can take a photograph for the purposes of remembering the detainee’s identity.  Multani 2002 BCSC 68 & Dilling 1993 BCCA.  Dang, 2007 BCPC 430; Bishop 2013 BCSC 522.  See also Acosta-Medina 2002 BCCA 33.

Police arrested Mr Nguyen 2001 BCSC 1869 and his friends, fingerprinted and photographed them, and used that evidence to determine that charges for cultivation should be laid.  Enterprising defence counsel applied immediately for an order destroying the fingerprints and photos.  Held: there was a Charter violation, but evidence was real evidence and should not be excluded.

However, in another decision the court admitted fingerprint evidence which was taken from Mr Toan Van Do 2002 BCSC 1889 before he was arrested.  This opened the door for the Provincial Court to find that police had the right under common law to fingerprint Mr Le (2004 BCProv Ct) after arrest, but before charges. In R. v. Davis 2004 BCPC 534 the court found that fingerprinting was not a search.

I thought the next logical step will be that you can take photographs and fingerprints as an incident to arrest only if you can articulate a reason why photos or prints may be relevant to an issue in the investigation.  For example, Tammie 2001 BCSC 336 affirmed 2004 BCCA 18.  See also Nunnery (2006 Ont S.C.J.). However, in Vu, 2007 BCPC 344, the court found that neither photographs nor fingerprints taken on arrest attracted any s.8 scrutiny.  This line of authority seems to be gathering adherents.  Arthur, 2013 BCSC 770; Bishop 2013 BCSC 522.  (In another context, in Meyers 2008 NLCA 13, the court found that neither s.7 nor s.10 protects the accused from disclosing his identity.)

During the stages before or during a preliminary hearing, under s.537(1)(b), the court may remand the accused to custody for the purposes of taking fingerprints, if

If you need photos for lineups, or fingerprints for comparison, consider getting prior authorization:

Fingerprints

Photographs

s.487.092 – bodily impression warrant
S. 501 - PTA or Recog O.I.C. to provide fingerprints after charge is laid.

Superintendent of Motor Vehicles, Corrections

487 – search warrant to get photographs from other sources such as schools

s.487.01 – general warrant to get a photograph or a fingerprint by covert means


If you do get fingerprints or photographs pursuant to the Identification of Criminals Act, you can use them for investigating other matters than the one for which the fingerprints or photos were taken. A.G. of Canada on behalf of The U.S.A. v. Graham, 2004 BCSC 1768.

Warrantless search of computers, cell phones, iPods, Blackberries etc.

The basic principles of search incidental to arrest set out above would seem to authorize searches of electronic devices incidental to arrest.  However, the large quantities of private information which some of these devices led to conflicting opinions about whether and how much police can search such devices incidental to arrest.

In Fearon, 2014 SCC 77, the court decided that you can search cell phones incidental to arrest but the search must meet these conditions:

  1. Lawful arrest - as with all searches incidental to arrest, the search depends upon a lawful arrest.  A lawful arrest requires reasonable grounds to believe (and belief) that the suspect committed an offence for which s/he may be arrested without a warrant.
  2. Search truly incident to arrest - you can't poke around in a cell phone just because you arrested someone.  You need reasons connected to the arrest, such as protecting people, or preserving or discovering evidence relevant to the offence.  Even if you can justify looking at the suspect's texts or photos, you can only look back so far in history as is truly relevant to the offence.  You can't prowl through the whole phone.
  3. Serious offence - "a search of a cell phone incident to arrest will generally not be justified in relation to minor offences."  When you stop a distracted driver, you can't snoop through his or her phone for evidence to prove they were texting and driving. Robbery, rape and murder plainly qualify.
  4. Pressing investigative need - although the court rejected the notion that warrantless searches of cell phones should be done only in exigent circumstances, it introduced a requirement of "immediate investigative purpose".  You should get a warrant unless the circumstances render it impractical. For example, if you need to look into the phone immediately for fear of losing evidence during the time it takes to apply for a warrant, then you can look. Similarly, the need to identify accomplices or locate their firearms may justify this warrantless search.
  5. Detailed documentation - if you do search using this exception, you must take very detailed notes of what you searched in the phone and why.  If you're going to operate the phone, I suggest video-recording the process including your explanation of what you're looking for and why.

Vehicle Search & Inventory Search of a Vehicle

To search a vehicle, you need authority.

Search incidental to arrest - Can I search the trunk?

When searching a vehicle after arresting someone in or near it, you don’t need reasonable and probable grounds to believe that the search of the car will produce evidence.  But there must be some reasonable prospect of securing evidence of the offence for which the accused was arrested.  A short delay does not prohibit you from making this search, but you must be ready to explain the delay.  (Caslake 1998 SCC para 24)  If you arrest the suspect in his car, you can tow the car to the detachment for a thorough search there.  Fehr 2004 BCCA 53.  But conduct the search right away.  Don’t search the car on the next shift.

Many officers ask whether they can search the trunk incidental to arrest.  There is no one-size-fits-all answer to this question.  After arresting someone, you can search the prisoner and his or her vicinity for evidence of the offence.  How wide that vicinity is depends upon the offence.

For example, in Mohamad, 2004 CanLII 9378 (ON C.A.), police believed that used car dealer was exporting stolen cars.  They arrested him at his business and searched the interior of vehicles they found there.  This was lawful even though he wasn't in the cars at the time of the arrest.  His "vicinity" included the entire car lot because they were under his control at the time.

By way of counter-example, consider Ms Majedi 2009 BCCA 276.  Police officers arrested her for breaching her recognizance, and searched the purse she carried.  They claimed to be looking for a copy of the court document.  The court wasn't impressed.  The purse really had nothing to do with the offence, even if it was in her possession at the time.

Inventory search

Can a police officer search an impounded vehicle for the purposes of preparing an inventory of its contents?  Generally, no.  Nolet 2010 SCC 24.  Even a search "incidental to arrest" must be limited to places where there is reason to suspect you will find evidence of the offence.  Caslake (1998 SCC).

In Nicholosi (1998 Ont CA) the court said an inventory search was lawful if the vehicle was impounded under a section of the Ontario Highway Traffic Act, and the purpose of the search was to address civil liability for loss of valuables in the vehicle.  The court found this power to search implied by the impoundment section.  This does not restrict officers to what's visible.  They may also open containers and bags inside the vehicle. Wint, 2009 ONCA 52. The Ontario legislation provides for a power to impound an abandoned vehicle - which may apply even if the officer sees the suspect leave the vehicle. Ellis, 2016 ONCA 598. Abandonment does not occur just because a person runs away from their car. Dunkley, 2016 ONCA 597 This power to search does not arise merely because an officer detained a driver, nor even if the officer arranged for a tow truck to move the vehicle off the highway. It arises where the police will take custody of the vehicle, and separate the driver from it. Harflett, 2016 ONCA 248.

The legislation in many provinces resembles the Ontario legislation, but few provinces have applied this decision.

Alberta: Nguyen-Tran, 2006 ABQB 677; Dykhuizen, 2007 ABQB 534

New Brunswick: Mitchell 2005 NBCA 104

In B.C. several different sections authorize you to impound a vehicle.  So far, B.C. courts approved inventory search for only one:

Motor Vehicle Act

Transportation Act s.68(6) - seizure of vehicles blocking the road

If you want to do an inventory search pursuant to this legislation, make sure you do the impoundment properly.  Know why you are searching: is it for evidence (which presumes an offence), or is it civil issues like risk of harm or loss to propery?

Judges don't like false pretexts.  For example, in R. v. Clarke (2001 Ont HC) the police arrested suspects for robbery, but searched their vehicle for "inventory" purposes.  The evidence found was inadmissible.

Someone shot Mr Adam, 2012 ABPC 77.  At the hospital, police investigating the shooting seized some of the bloody clothing that ambulance personnel seized from him.  When checking the contents of the pockets of that clothing police found illegal drugs.  Mr Adam complained of an unreasonable search.  The court found it was proper.

When to think and what to write

For any search, consider what you are looking for and why.  If you find anything, record

Document what you noticed before the search.  Finding evidence naturally catches your attention more than the suspicions which led to it.  Unfortunately year or more later, at trial, defence will challenge you to explain why you stopped the suspicious person.  In order to articulate later why you detained the suspect, you must record the observations you made before the stop and search.  Take care to record all the surrounding circumstances.


Strip Searches & Searching Genitals

The Common Law power to search a person incidental to arrest includes the power to search private parts. However, "the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search".

  1. To strip-search for the purposes of obtaining evidence, you need reasonable and probable grounds to believe that it will produce evidence.
  2. To strip-search for the purposes of locating weapons that might pose a risk to other inmates, you need reason to believe that the prisoner will be lodged with other inmates.

Minimize the violation of privacy; but document fully what you did.

Police heard of drug dealing at a particular pub.  They went to the pub wearing plain clothes and saw Mr Golden 2001 SCC 83 conduct what look like drug transactions.  They arrested him, and found a small quantity of crack cocaine where he had been sitting.  They patted him down and checked his pockets but found nothing.  They took him to the stairway to the washrooms, and peered into his pants: they saw cellophane between his buttocks.  He resisted the officers’ attempts to seize the package, and an officer shoved him to the ground.  They took him to a back room containing 5 police officers, 2 other prisoners and an employee of the bar.  There they pulled down his pants, held him over a table, and fought with him to extract the package.  He accidentally pooped.  Officers used dishwashing gloves to get the drugs.  The court found that the arrest was lawful but the search was not executed reasonably.  The court excluded the evidence, and Mr Golden beat the charge.

The court considered the lawfulness of strip-searches, and the proper way to conduct them.  In a nut-shell:

Lawful search
  • Lawful arrest - the officer must have reasonable grounds to believe that the suspect committed an offence.
  • Expectation of evidence - In addition, the officer must have reasonable grounds to believe that baring the suspect's privates will secure or preserve evidence of the offence for which the officer arrested.
  • Document the reasons for the search.
Proper execution
  • Location must be a controlled and private environment, such as the police station.
  • Gender of officers searching must match the gender of the prisoner searched.
  • Health of the prisoner must be respected - search in a sanitary manner.
  • Number of observers who see the prisoner's nakedness must be minimized.
  • Force used must be the least necessary to complete the task.
  • Duration and extent of nakedness must be minimized - if possible, allow the prisoner to keep at least one part or another covered throughout.
  • Approval from a senior officers should - where possible - be obtained before searching.
  • Physical contact should be minimized when possible - give prisoners the option of removing objects from their own bodies, or having trained medical professionals assist.
  • Record or document what happened during the search.

Privacy and Transparency

How do you respect the prisoner's privacy while fully documenting a strip-search?  Every tactic comes with flaws:
Officer takes copious notes The suspect may contradict the police version; the judge may question why police did not at least audio-record the search.
Additional observer takes notes This increases the number of eyes that can embarrass the prisoner.
Officers audio-record the search The suspect may fabricate evidence of abuse.  In Laporte, 2012 MBQB 227, the prisoner screamed when the police touched his body with a Q-tip.  The officers believed he was faking pain. At trial, the judge seemed to accept that the search actually caused pain.  An audio recording may not suffice.
Unmanned video recording Video-recording the search at all means other eyes will see the search later.  That increases the violation of privacy.  A fixed camera may accidentally record nakeness.
Hand-held video recording A human-controlled camera can capture the process of the search, and deliberately focus away from the genitals.  However, a suspect who sees an officer wielding a camera will likely feel a greater sense of violation of his or her privacy.

If you can organize it, I suggest this compromise:

Cellblock Surveillance Cameras

Surveillance cameras often watch and record what occurs in police cells.  This can allow more eyes than necessary to intrude on the prisoner's privacy, and can make a permanent record of his or her nudity.  Beware of accidentally or routinely recording prisoners' nakedness.  If a camera records the space where you take a suspect's clothes off, you could place a chair or hang a towel between the prisoner and the camera, and ask the prisoner to stand behind the chair or towel.

Searching for Suspect's Drugs or Injuries

Assuming that the officer has grounds to believe that evidence of the offence will by found on or in the prisoner's private parts:

Victim's DNA

On arrest, you can swab a rape suspect's penis for the DNA of the victim, if the rape occurred sufficiently recently, and under circumstances that you have reasonable grounds to believe that her DNA will be recovered. However, you must conduct that search with the utmost care for the accused's privacy. Saeed, 2016 SCC 24.

Expectation of finding evidence

The officer who decides to strip-search must have reasonable grounds to believe that it will secure or preserve evidence.

Mr Thomas (Ont Sup.Ct., affirmed by Ont C.A.) secreted 7 grams of crack cocaine between his buttocks when police executed a search warrant for drugs in his residence.  The officers conducting the residential search had good reasons to believe that Mr Thomas possessed the drugs, and so they arrested him.  They found no drugs in the apartment, but when they frisked him they found a small quantity of marijuana.  All the same, they took him back to the police station where another officer, who knew only about the marijuana, took him into a private cell and asked him to pull down his pants and bend over.  The trial judge found that the second officer did not have reasonable and probable grounds to believe that there was evidence to be found, nor any bona fide belief that the search was necessary for the protection of prisoners.  Therefore it was an illegal search.  However, he admitted the evidence anyway, because the officers involved carefully respected the accused's privacy, and because the original arresting officers had sufficient grounds for the search.  It's a good idea to tell the people you work with what to look for and why.

Strip-searching prisoners for the safety of other prisoners

Police strip-searched a prisoner at the detachment before determining whether he would be placed in cells or not. Held: this was an arbitrary search, and contributed to a stay of proceedings.  R. v. Drury et al 2004 BCPC 188

For prisoners who will be detained for a short period, strip searches must be performed only as required by the specific case.  Lee, 2013 ONSC 1000.

Police arrest the ringleaders of a social protest group that started a riot.  Although police intended to release these protesters, they wanted cash bail.  The prisoners were transferred from one agency to the next, and with each transfer, they were strip-searched.  Describing strip searches as generally “odious”, the court found breaches of the protester’s rights by reason of the unnecessary extra searches.  Clarke [2003] OJ No 3884 Ont Sup Ct.

Access to Counsel before strip search

A strip-search to preserve evidence does not involve asking the suspect to create evidence against himself, and therefore should not engage s.10.  In B.C., if you reasonably fear that evidence could be lost during the delays resulting from calling lawyers, then you may proceed with the strip-search before access to counsel.  Harasemow, 2014 BCSC 2287

A judge in Ontario thinks you should give access to counsel before swabbing genitals for DNA. Amey, 2013 ONSC 5108.

International Borders

At Canada's international borders, and at international airports, people coming into Canada enjoy low expectations of privacy.  Drug dogs can sniff your luggage. Border guards can examine it.  Jackman, 2016 ONCA 121

Examples

Search on Detention

Just after midnight, police officers attending to a B&E call found Mr Mann (2004 SCC 52).  He matched the description of the suspect.  On request, he identified himself.  An officer searched him quickly for weapons, and found a soft object in the front pocket of his kangaroo jacket.  He pulled it out and found it was drugs.  Held: During an investigative detention, police may search only for weapons that pose them a risk.  This power of search is to protect police in their duties and may not be turned into a fishing expedition.

Around the time of the Johal-Dosanjh drug gang killings, an innocent civilian was gunned down on the street.  Police believed that a specific yellow Acura was associated to the Johal gang.  They spotted it a few blocks away from the Dosanjh residence, and pulled it over.  They got Lal out of the car.  He wore a fanny pack which the police removed from him.  It fell to the ground like a brick.  Police searched it and found a handgun.  Behind the driver’s seat was a box of ammunition.  Held: search lawful because police had a live concern about weapons which would pose them a danger. Lal (1998 BCCA)

A confidential informant alleged that Mr Plummer, 2011 ONCA 350 wore a bullet-proof vest, carried a handgun, and sought revenge against someone who shot at his brother.  Police found Mr Plummer in the passenger seat of a car illegally parked at a location known for drug-dealing.  At that time in the afternoon, children walked through the area on their ways home.  A pat-down search confirmed what the source said about the vest.  These circumstances suggested a heightened risk to police officers dealing with him and other people in the area.  This justified a cursory search of the area of the front passenger area (where police found the handgun).

On patrol, a police officer spotted a car bearing a stolen licence plate.  When he pulled it over, the driver fled.  The officer summoned back-up because the car contained two passengers.  When they arrived, he took Ms Ferris (1998 BCCA) out of the car, handcuffed her, and searched her body for weapons.  He asked her name, and she gave one, saying that her identification was in her waist-pack.  The officer removed her waistpack and looked inside for weapons and identification.  In court, he explained that passengers in vehicles bearing stolen licence plates are often involved in criminal activity, that even with handcuffs on, Ms Ferris would have had access to her waistpack.  There was no lawful right to search for identification.  Defence argued that the officer could have removed the waistpack without searching it.  Held: The police aren't required, in unplanned circumstances, to measure to a nicety the means of securing themselves from possible harm.  If the detention ended, the police would be giving the waistpack back; and if it contained a weapon it would endanger police.

Police found Mr Alkins 2007 ONCA 264 in the driver's seat of a car stopped in a dark parking lot.  There were four men in it, and the front passenger was on probation, with a condition not to be in the area.  They arrested the passenger, and found him in possession of hidden weapon.  They searched Mr Alkins, and found him in possession of a hidden weapon.  When they removed the back passengers, they found large knives at their feet.  The officers searched the trunk and found a loaded sawed-off shotgun.  The trial judge thought this was an unlawful search.  In a strong clear decision, the Court of Appeal found otherwise.

"where multiple suspects have been lawfully arrested and several weapons have been discovered pursuant to lawful searches of the arrested persons and the interior of a car, it is appropriate for a police officer to search the trunk of the same car with a view to discovering additional weapons."

On a good tip, a police officer attended Mr X's car business, and found two vehicles that appeared to be stolen.  He arrested Mr X (who wasn't driving either vehicle at the time).  Inside one of the vehicles, he found a briefcase.  Just before he opened it, Mr Mohamad (2004 Ont CA) appeared and claimed it.  Mr Mohamad even took the briefcase away from the scene, but the officer quickly found him and recovered the briefcase.  Inside the briefcase, the officer found counterfeit VIN plates, plane tickets and shipping documents for the stolen vehicles.  Mr Mohamad complained of illegal search.  Held: The search was incident to the arrest of Mr X.

When the police cruiser drove by a closed restaurant, Mr Chaisson 2006 SCC 11 was sitting in his car, in the dark parking lot, with another feillow.  They threw something out the window, and the officer suspected drugs.  The officer told them to get out of the car, but didn't tell them why.  His intention was to search the vehicle.  He found the drugs, and then arrested them.  But he didn't give them their rights until after backup arrived. The court found that the officer breached Mr Chaisson's rights under s.8 (search), s.9 (arbitrary detention) and s.10 (right to counsel).  There are three main points to this case: Except in exigent circumstances, you can't use suspicion to justify a search for evidence.  When detaining people, you must explain why.  And if you've got the scene under control, then tell your prisoners about their rights.

Police found Mr Olivera 2007 BCSC 385 driving a car after his Conditional Sentence Order curfew.  Olivera got out of his car immediately. Even though he gave an explanation for his breach, the officers arrested him and placed him in a police car.  They searched his car finding drugs.  Was the search lawful?  The officer claimed the search was for two reasons: officer safety, and to find evidence explaining why Olivera would risk being out after curfew.  Nobody accepted the officer safety reason -- Olivera was in custody, and wasn't a risk.  But the other reason was acceptable.  You can't search a persons car just because he's on a probation or conditional sentence order.  But after an arrest for a breach, you can search the car if you think it might contain evidence relevant to the breach.

Mr von Meyenfeldt 2006 BCSC 1142 and two friends sat on the art gallery steps in downtown Vancouver.  When a police officer approached, they stood and started to leave.  The officer noticed that they left a can of bear spray behind.  He stopped them to investigate.   He had previously taken a can of bear spray from one of von Meyenfeldt's friends.  He searched them for officer safety.  It took up to 20 minutes to convince von Meyenfeldt to submit to a search, and because he struggled, the officers handcuffed him.  They found a stun-gun.  They arrested him and found drugs.  The court found the evidence admissible because the officer initially searched for officer safety.  Although the 20-minute delay was problematic, it was not fatal in this case.  The defence argued that the investigation into the bear spray can was a mere pretext -- nobody tested it for fingerprints.  The court found that the more serious discoveries justified a change in focus.  The lesson to draw from this successful prosecution is that defence counsel are aware that this power to search for officer safety can be abused, and will accuse you of searching on a pretext.  Therefore, when searching for officer safety, be clear why your safety is actually at risk.  Record your concerns.

Articulation

Police officers stopped and frisked Mr Davis 2004 ABCA 33, a suspected drug dealer.  They did not have R & P grounds to believe he had committed an offence.  Inside his pant leg was an extra-small Pringles potato chip can.  Too small to hold a knife or a gun.  The investigating officer opened it and found drugs.  He testified that he was looking for weapons, not drugs.  He said that he feared it might contain needles.  No breach of s.8.  Evidence admitted.

A police officer driving in the bad part of town noticed Mr Duong 2006 BCCA 325  in a car rooting around in it.  He was still there 20 minutes later.  The officer stopped to take a closer look, and saw a car stereo in the back seat, with the bare wires hanging out.  The officer suspected that the man was engaged in theft from the car, and asked him to get out.  Considering the rough neighborhood, the officer searched the man for weapons.  He found a hard object in one pocket which turned out to be a roll of bills.  He put it back.  He found another hard object which turned out to be drugs packaged for sale.  What made this officer's search reasonable was his careful description of the factors that made him concerned for his safety.

Plainclothes officers saw Mr White, 2007 ONCA 318 conduct what looked like a drug transaction in a high-crime area. When he drove away, they followed him, and ran his licence plate. It revealed that the owner of the car was prohibited from driving. They watched him:

When the officers approached him, he said into the phone "Yeah, they’re here now." Could they seize his cell phone? The officer testified that he feared that Mr White would summon backup who would pose the officers a threat, or remove evidence. Under these circumstances, the court agreed that seizing the phone was reasonable to protect the officers. However, I don't think it gave the officer authority to search the cell phone until after an arrest for something related to it.

How the Defence Lawyers See it

The B.C. Civil Liberties published this handbook, which summarizes all the advice a defence lawyer would give his/her client about what police can and can't do.  I recommend it as a simple primer on the topics covered in this web page.

Leading Cases

Detention

R. v. Mann 2004 SCC 52
Chaisson 2006 SCC 11

R. v. Greaves 2004 BCCA 484
Ferris (1998) 126 CCC (3d) 298 (B.C.C.A.)
Lal (1998 BCCA)
Johnson  (2000) 32 CR 5th 236; 2000 BCCA 204
Cooke 2002 BCCA 305

Arrest

Cloutier v. Langlois 1990 SCC - search the person for evidence
R. v. Caslake (1998 SCC) - searching vehicles

R. v. Dubois 2004 BCCA 589 - Search before arrest permissible

Photograph a Detainee

Multani 2002 BCSC 68
Dilling 1993 BCCA

Tammie 2001 BCSC 336

Strip Search

Golden  2001 SCC 83

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