| When you have reasonable grounds to: | you may enter a private place such as a residence | |
| suspect |
life or serious bodily harm is threatened and only immediate action will provide protection | to prevent the harm. Godoy |
| believe |
evidence of a criminal offence will be lost or destroyed, and only immediate action will preserve it | preserve the evidence from destruction
s. 487.11 |
Document the information which you had at
the time of the warrantless search, and the purpose for which you searched.
Warrantless searches attract vigorous judicial scrutiny
because it is the court’s job to supervise all police powers.
If you search without a warrant, you can expect many questions
afterwards.
These
powers
depend upon the existence of an emergency. When the
emergency is over, you must obtain judicial authority for any
further violations of privacy. If you enter to preserve
life, and discover evidence of an offence, you should obtain a
search warrant before searching for more evidence.
|
Arrest in Dwelling House |
- person is in the dwelling |
|
|
Search & seize things in places |
- thing is in a “building,
receptacle or place” |
|
|
Tracking Device |
- offence has been or will
be committed |
|
|
|
Evidence of guns, bombs ammunition, prohibited devices
|
Peace officer believes on reasonable grounds that - evidence may be found in any place other
than a dwelling-house |
|
Weapons, and bombs |
Peace officer believes on reasonable grounds that: - it is not desireable in the interests of
anyone’s safety that |
|
| 184.1 | Interception of Private Communications by One-Party Consent |
- an offence has been or will be committed |
| 184.4 | Interception of Private Communications* |
Application
by police officer to protect life (not just for
gathering evidence)
Give notice to targets afterwards. |
| CDSA s.11(7) | Search for drugs and evidence of drugs | - controlled drug, precursor, drug-offence-related
property or evidence of drug crime - in a place - exigent circumstances render it impracticable to obtain a warrant |
The common law rule of hot pursuit survives! An officer who saw the offence may pursue a suspect into a home even for summary conviction offences. R. v. Macooh (1993 SCC)
911 hangup call. The police duty to protect life is engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined. The importance of the police duty to protect life warrants and justifies a forced entry into a dwelling in order to ascertain the health and safety of a 911 caller. Godoy (1997) 115 CCC (3d) 272 (S.C.C.).
Reasonable grounds to fear for someone's safety
may come from another person. Police entered Mr Mehari's,
2011
ABCA 67 apartment because of a 911 call from a woman who
complained that another woman might be in danger in the
apartment. Even though the caller did not perfectly
describe the apartment building, the court held that the
officers' entry was justified.
Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. The fact that the evidence sought is in a motor vehicle or other conveyance will often create such exigent circumstances, but no blanket exception exists for such conveyances. Grant (1993) 84 CCC (3d) 173 (SCC)
Mrs Jones, 2013 BCCA 345 called 911 asking for ambulance assistance: her daughter was "freaking out", and she needed help removing the daughter from her house. Emergency services asked police to help: paramedics don't solve violence. Police found Mrs Jones in her car, distraught, outside the residence. She gave an officer the key to her house, and asked them to remove her daughter. She said there was nobody else in the house. The officer entered, and found a calm young woman, who came away without fuss. The officer then proposed to clear the residence, to ensure that nobody else was was hurt. The daughter told the police officer to seek her mother's permission before doing that. The officer went ahead anyway, and found growing marijuana in the house. Mrs Jones complained of an unlawful search. The judge agreed. The officers had no reason to think that anyone else was in the residence or needed help.
Mr Davidson, 2017 ONCA 257 had a 4-year-old autistic boy who wandered to a busy street. A passer-by called police. When police arrived, the child was in his mother's arms. This apparently momentary neglect did not justify searching the residence for child safety concerns.
Defence
tried a similar argument in Depace,
2014 ONCA 519. A child phoned his grandmother
complaining that his parents were fighting. She called
police, telling them that the child would call only if the
fight got "pretty serious". When police attended the
residence, no sound came from the house, even after 25
minutes of knocking. When they broke in, they found Mr
Depace, drunk, and the child's mother. They searched
the residence more widely, in case others were in the house,
injured. The court observed "the police do not need to
take the word of the occupant that everything is alright."
Neighbors complain that Mr Laliberte 2007 SKCA 7 is fighting with a woman, with a weapon. They attend, knowing about his history of violence with his common-law. The neighbors say she ran away. The officer enters the house anyway to ensure that she is safe. She finds him breaching his abstention condition and arrest him. The entry was justified by reason of exigent circumstances to protect life.
Informants of unknown reliability tell police that Mr Golub (1997) 117 C.C.C.(3d) 193 (Ont CA) was drunk, possibly high, showing off firearms, and saying he was going to “get even” with the bar staff who cut him off. He was particularly upset that his wife left him a day before. Police attended his apartment.When he emerged, he locked the door, even as officers told him to leave it open. Officers burst in anyway, to search for occupants who might pose a risk or be at risk. They found a loaded rifle under his mattress. Defence sought exclusion of the evidence. Held: The standard for “reasonable grounds” for arrest is more flexible than the standard for search warrants. The search incidental to arrest was OK for the purposes of preventing harm to the people at the scene of the arrest, and to secure the scene.
Police responded to a complaint of strange noises in an appartment building. The complainant indicated that water was leaking through his ceiling. The police officer went upstairs and found large amounts of water pouring under Mr Atlas's 2005BCPC 456 door. The caretaker of the building was present, with the master key. The police officer knocked, demanded entry, and went in. At court,the officer explained that he feared for the safety of people inside the appartment. The judge couldn't see any reason why a plumbing problem endangered anyone's life, and found the search unconstitutional. The officer should have relied upon the caretaker to enter, and asked his permission to enter with him. (I'm not sure I agree with the court's logic in this case - a peace officer's duties may also include a duty to protect property from unnecessary destruction.)
Mr Hill's 2006 BCCA 530 neighbor heard what she thought were gunshots coming from his property. She called police. The officers who attended heard two more gunshots in that general vicinity. When they asked Mr Hill what was going on, he gave inconsistent explanations. They searched his residence"for the purpose of securing the life and safety of anyone who might be in harm's way", and not for the purpose of investigating a crime. This search was lawful. The police officers found a grow operation and got a search warrant. Because it was based upon information discovered in a lawful search, the warrant survived judicial scrutiny.
By way of contrast,
Mr Mann
2003 BCSC 1725 made a 911 call complaining about a home
invasion. When police arrived, he told them that the
invaders were not in his house. He refused to permit the
officers to enter. A suspect said that she was with a
group who attended for the purpose of stealing marijuana from Mr
Mann's grow operation. The officers testified that they
searched the residence for public safety, but the judge found
that they really searched it for the purposes of discovering
evidence of the grow-op. This was an illegal search, and
the evidence of the marijuana grow operation was excluded.
Police answering a 911
call learned from the complainants that "Mikey" (Hudson,
2007CanLII 21960) delivered them some cocaine, and then obtained
the sexual services of a prostitute, but refused to pay.
Instead, he drew a handgun, loaded it, and made threats.
He left in a cab. The officers learned from the cab
company that they dropped off a man matching Mikey's description
at a notorious apartment building. The manager there told
them which suite to find"Mikey". The officers knew a
murder had been committed in the area by someone roughly similar
to Mikey, so they approached this suite with caution. With
the help of an emergency response unit, they knocked on the door
and called for the occupants to come out. They did not intend to
enter, but they wanted to know if "Mikey" was inside.
After 5 minutes, an occupant came to the door. They
detained him. They called again for the occupants to come
out. Another came, saying that there was no one else
inside. They detained him. They then saw Mr Hudson
inside, matching the description of "Mikey". They ordered
him out at gunpoint and arrested him. They did not find
the handgun. The officers then searched the residence, on
the basis that either the gun was there, or it had been tossed
into a public place between the complaint and the apartment, and
it would be impracticable to search the route the taxi
took. They found the handgun, but left it in place to go
get a proper warrant. Did they breach s.8?
The trial judge said no. The search of the residence was justified because it was a public safety search under s.117.04.
Police received an anonymous telephone call from a mall pay phone asserting that there was someone injured in Mr Wu's 2008 BCCA 7 house. Police first went to the mall to see if they could obtain more information, but there was nobody at the pay phone. Then they went to the house, but nobody answered the doorbell. It looked like a grow operation. Someone came out the back door. An officer detained him, handcuffed him, and asked if someone was hurt inside. In broken English he seemed to say there was. Cst Chow entered with a drawn handgun. He found other people but nobody was hurt. He found a grow operation. They got a proper warrant, and took it down. Mr Wu complained of an unreasonable search, but the court found that the police had sufficient evidence - just - to justify a search on exigent circumstances.
Police find Mr Sam wandering near the scene of a shooting. He is in possession of break-in instruments. There were solid grounds to suspect him to be involved in the shooting, but not R & P grounds to arrest him for it. They want his clothes for forensic purposes, so they seize the clothes, and release Sam on the break-in instruments charge. Held: Search and seizure reasonable R v. Sam [2003] O.J. No 819 (Ont S.C.J.)
Two girls aged 5 & 7 were picked up in a car and sexually assaulted. Of 10 descriptors of their assailant, Hart 2002 BCSC 659 matched 8. Police seized his car but did not search it immediately. Hart gave a statement which provided them R & P grounds. Then the police searched the car. The seizure was warrantless, but the court admitted the subsequent search. Held: articulable cause sufficed under the circumstances. There is a lower expectation of privacy in a car. There were exigent circumstances – they might lose valuable evidence if they did not seize the car.
In a similar vein, Mr Haglof 2000 BCCA 604 did a hit-and-run. Police went to his house 35 minutes after the accident. When they knocked, he would not answer. Police entered and arrested. The trial judge called it hot pursuit, and the BCCA agreed. This is probably more justifiable as exigent circumstances. If you're going to do a search like this one, be ready to articulate why.
Police planned to get a search warrant for Mr Phoummasak's, 2016 ONCA 46 residence for drugs, but an unexpected development caused the officers to fear that he would learn of their imminent arrival. They entered without a warrant, and found him destroying evidence. The court agreed with defence that police can not manufacture an emergency to circumvent drafting a warrant application; but unforeseen events may justify immediate action.
Police
planned to get a search warrant for Mr Hobeika's,
2020 ONCA 750 apartment and vehicle because they had good
information that he was trafficking from that apartment. They
planned to execute it when he went there. Surveillance
discovered he was living in a different apartment. Further
investigation suggested that he was trafficking from the other
apartment. When they saw him get into the car, they executed
the warrant to search his car. Because this search occurred in
sight of the second apartment, they feared that occupants
would destroy evidence in it. Therefore, the officers entered
it and froze the scene. They found people and lots of drugs.
The court held that the police did not engineer the exigent
circumstances in this case, and therefore the warrantless
search was lawful.
Police received an anonymous
tip: "There's a body at Pillay's place. Been dead 3 days." (Pillay #1 - 2004 Ont
S.C.J. upheld
2007
ONCA
207) Police rush over in case the caller is
mistaken about the death of the victim. They perform a
warrantless search. They find blood in a bedroom, and
a bad smell of rotting flesh. More officers arrive and
test the blood for the presence of amniotic fluid.
Then they notice bullet holes and go get a warrant.
Held: Because the police officers had grounds to hope that
they might yet discover an injured person to save, they were
entitled to search immediately, and to search further for
information about the injured person. Once they found
the bullet hole, then they had RPG that an offence had
occurred. Around that time, it was clear that there
was no injured person in the appartment. It was time
to go get a warrant. (Which they did.) The
appeal court wasn't sure the tip was sufficiently reliable,
but admitted the evidence anyway under s.24(2).
"Sarah"
called
911 from Vancouver. She said that she had received a call from an unknown
male who said he had been paid $100 to call her to say he had
someone tied up 475km away at 5065 Canim Road, Buffalo Creek.
She gave no personal information, such as her last name, a
call-back number, or an address. Sarah had told dispatch that
she did not know the male, but she gave dispatch the phone
number which she said showed on her cell phone display as
having come from the unknown male. The prefix was local to
Buffalo Creek, which includes the address of this
residence. She claimed to be in labour, and did not want
the police to call back. Police attended and searched
the residence on the basis of exigent circumstances.
They found nothing. They unlocked some outbuildings, and
found a marijuana grow operation. The judge concluded
that the tip was too unreliable to justify an exigent
circumstances search, and excluded the evidence. Brunskill
2010 BCSC 187
Cst. Hope,
2007 NSCA 103 had reasonable grounds to believe that Ms Silver
committed an offence. He went to her residence at spoke
with her at her doorway. She denied involvement.
While her hand rested on the doorjamb, he touched her sleeve and
told her she was under arrest. She pulled away, and the
officer followed her into the house to effect the arrest.
He was charged with assault: he had no Feeney warrant. The trial judge
acquitted, the first appeal judge disagreed, but the highest
court in Nova Scotia agreed with the trial judge. Because
the officer's hand did not cross the plane of the doorway, and
because the officer touched her saying words of arrest, the
arrest was lawful. When she pulled away back into the
house, the officer was entitled to enter in hot pursuit.
Apparently, if you want to arrest at the doorway, you must wait
until some part of the suspect leans out. You must touch
it and say words of arrest. And then if the suspect tries
to escape, then you can pursue into the residence.
Police received a call from a pay phone that there was an injured person in Mr Wu's 2008 BCCA 7 house. When police attended, they saw obvious signs that it was a grow-op. They knocked on the door, but nobody answered. An officer heard a noise out behind the residence, and went to investigate. There he found Mr Wu, just outside the residence. The officers went in, and found more people. Behind a padlocked door, they found the grow-op. They applied for a warrant, and then did a full search for the grow. Defence complained that the police entered and searched without a warrant. The court had no difficulty finding that the police entered for the purposes of preserving life: grow operations are notorious for violence.
A hallucinating and irrational guy pepper-sprayed a stranger, and then he jumped into Shuswap Lake. When police fished him out, he raved about strangers invading his home. The officers looked around and found a grow operation. Two of three judges found that the officer's grounds weren't "reasonable". Larsen, 2011 BCCA 454 (But suppose police had not looked, and someone did die there...?)
Police arrested Mr Crocker,
2009 BCCA 388 in the underground parkade of his apartment
building. When searching him incidental to arrest they
discovered evidence which gave good reason to believe that his
suite contained counterfeiting equipment. They knew his
daughter lived there. For fear that she might destroy
evidence before they could obtain a search warrant, the officers
entered and cleared the suite. Because their fear relied
on no more that speculation, this entry and search violated s.8
of the Charter.
Minimize warrantless intrusions into privacy. Don't
search if you don't need to.
Officers investigating a possible break & enter found a marijuana operation. They claimed they searched the residence for victims of a robbery. But they counted the plants. Would you count plants if your purpose was to rescue people in danger? The court found that the officers exceeded their authority to search. Batanov 2011 BCSC 1749.
When responding to a 911 call about an attack on a drug-dealer, police who rescued an associate of the victim insisted on searching her bags when she and her 2-year-old daughter emerged from their apartment. The court found that there were other ways for the officers to ensure safety, and excluded the guns and drugs they found in her knapsack. Kelsy, 2011 ONCA 605
Police received a complaint that thieves broke into Mr Hern's, 1994 ABCA 65 residence. An officer attended to investigate. Although neighbors told the officer that the kids had run away, the officer entered the house to ensure that the burglars were all gone. He found a grow-op. Hern complained that the officer searched his house without a warrant. The court found that under the circumstances, the officer did what the public expects him to: protect their property from crime.
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