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Canadian Criminal Procedure and Practice/Search and Seizure/Warrantless Searches/Incident to Arrest

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General Principles

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See also Warrantless Arrest for details on arrest powers

In the situation of an arrest, it is generally permitted that upon lawful arrest, police have the power to search a person for officer safety reasons as well where there is "some reasonable prospect of securing evidence of the offence for which the accused is being arrested" and to secure that evidence. [1] A peace officer may also take property from a person which the officer reasonably believes is connected with the offence charged, or which may be used as evidence against the person arrested. [2] This power is derived from the common law. [3] This common law power is an exception to the usual requirement of "reasonable grounds" for a search. The Officer must subjectively believe that person is committing or has committed an indictable offence and their belief is based on objectively reasonable grounds.[4] The lawfulness of a search incident to arrest flows from the lawfulness of the arrest itself and so does not require independent reasonable grounds. [5]

Search incident to arrest is an exception to the rule that a warrantless search is prima facie unreasonable.[6]

Further, an accused has no expectation of privacy with respect to his personal belongings seized upon arrest.[7]

Searches incidental to arrest are required to follow a number of principles stated in R. v. Caslake:[8]

  1. Officers undertaking a search incidental to arrest do not require reasonable and probable grounds; a lawful arrest provides that foundation and the right to search derives from it (Caslake at paras. 13 and 17);
  2. The right to search does not arise out of a reduced expectation of privacy of the arrested person, but flows out of the need for the authorities to gain control of the situation and the need to obtain information (Caslake at para. 17);
  3. A legally unauthorized search to make an inventory is not a valid search incidental to arrest (Caslake at para. 30);
  4. The three main purposes of a search incidental to arrest are: (1) to ensure the safety of the police and the public; (2) to protect evidence; (3) to discover evidence (Caslake at para. 19);
  5. The categories of legitimate purposes are not closed: while the police have considerable leeway, a valid purpose is required that must be “truly incidental” to the arrest (Caslake at paras. 10, 20 and 25);
  6. If the justification for the search is to find evidence, there must be a reasonable prospect the evidence will relate to the offence for which the person has been arrested (Caslake at para. 22);
  7. The police undertaking a search incidental to arrest subjectively must have a valid purpose in mind, the reasonableness of which must be considered objectively.

The police are obliged to safeguard items they have seized.[9]

  1. ↑ R. v. Caslake [1998] SCR 51 at 22
  2. ↑ R. v. Morrison 1987 CanLII 182 (ON C.A.), (1987), 35 C.C.C. (3d) 437
  3. ↑ Cloutier v. Langlois, [1990] S.C.J. No. 10 [1]
  4. ↑ R. v. Rajaratnam, 2006 ABCA 333 at para. 20 [2]
  5. ↑ R. v. Caslake, 1998 1 SCR 51 at 13
  6. ↑ R. v. Golden [2001] 3 SCR 679 at para 23
  7. ↑ R. v. Blais 2004 CanLII 8466 (ON C.A.) [3])There is no "blanket authority" to search a car incident to arrest. (R. v. Bulmer, 2005 SKCA 90 [4]
  8. ↑ R. v. Caslake, [1998] 1 S.C.R. 51[5]
  9. ↑ R v Strilec, 2010 BCCA 198; R v Wint 2009 ONCA 52

Person Arrested

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Searches conducted in the normal practice creating an inventory of items on a person who is being lodged in cells for an offence is a permissible search.[1]

  1. ↑ R v Unaru, [1994] BCJ No 1731 at 15

Motor vehicles

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The common law power of police to search incident to arrest can include the accused's motor vehicle.[1] An officer may search a vehicle incidental to arrest where it is for a valid purpose related to the offence and where the officer reasonably believed that the search would be only to achieved that legitimate purpose.[2] There is no heightened expectation of privacy justifying an exemption from the usual common law principles of search incident to arrest.[3] For example, a search of a brief case found in a stolen vehicle incident to arrest is justified.[4] The presumption of unreasonableness of a warrantless search is rebutted upon proof that the arrest was lawful and the search was reasonable.[5]

When a vehicle is impounded lawfully, the officers have a duty to keep the property safe and take reasonable steps to do so. This will require entering the vehicle for itemizing the property of apparent value. [6]

  1. ↑ R. v. Polashek 1999 CanLII 3714 (ON CA), (1999), 134 C.C.C. (3d) 187 (Ont. C.A.)
    R. v. Alkins 2007 ONCA 264
  2. ↑ R. v. Parchment, 2007 BCCA 326; Caslake at para. 19.
  3. ↑ R. v. Caslake, 1998 CanLII 838, [1998] 1 S.C.R. 51; R. v. Stillman, 1997 CanLII 384 (S.C.C.), [1997] 1 S.C.R. 607
  4. ↑ R. v. Mohamad, 2004 CanLII 9378 (ON C.A.), 182 C.C.C.(3d) 97 (Ont. C.A.)
  5. ↑ R. v. Klimchuk (1991), 67 C.C.C. (3d) 385 (B.C.C.A.) [6]
  6. ↑ R v Nicolosi, 1998 CanLII 2006 (ONCA) at 30

Passengers of Vehicles

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A passenger in a motor vehicle generally does not have a reasonable expectation of privacy.[1] However, there is an expectation of privacy to the limited area underneath the passenger.[2]

  1. ↑ R. v. Belnavis, [1997] 3 S.C.R. 341 1997 CanLII 320
  2. ↑ R. v. Dreyer, 2008 BCCA 89

Computers

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A search memory stick without warrant upon arrest for credit card fraud has been found to violate s. 8.[1]

  1. ↑ R. v. Tuduce, 2011 ONSC 2749

Cell phones

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The law regarding police procedure for searching cell phones is a developing issue in Canada.

In many cases police seize cell phones from suspects and search them following an arrest. Police are permitted to search people for weapons of evidence related to the reason of arrest immediately following an arrest. These searches may only be performed where police have reason to believe that relevant evidence will be found that could otherwise be lost or destroyed. This is called search incident to arrest, and the rules concerning this procedure arise from Caslake [1], and Cloutier v. Langlios [2] .

At this stage, if a police officer finds an unlocked phone, they may perform a cursory search of its contents. The term 'cursory' search has been called "too vague" and whether these searches will continue to be allowed on cell phones, and under what circumstances, is subject to debate in Canadian,[3]; however, these searches have been permitted with little argument in the past. [4]

In other examples, warrantless incident to arrest searches of cell phones have been held valid where the search is carried out reasonably, and for a valid purpose related to the offence.[5] In another example, a cursory search of a cell phone incidental to arrest was lawful where it was used to determine identity and whether the phone was stolen.[6]

In these types of searches, the reason to search the phone has to be somehow connected to the investigation. A search of a cell phone during an arrest for curfew breach, for example, was found to be a violation of s.8.[7]

There are many cases where police then take a cell phone into the station, or send it away to a lab, for computer assisted searches. This has been permitted in the past without a warrant. [8] New cases have cropped up, which are tied to Supreme Court of Canada discussion surrounding privacy interests that people have in their computers and smart phones, [9], that point to a new requirement for police to obtain warrants before subjecting a smart phone to a computer assisted search or a search involving the copying of a phone's contents. [10]

Providing particularly good summary discussion on this issue are leading provincial court cases: in British Columbia, R. v. Vye, (2014) BCSC 93, and in Nova Scotia R. v. Hiscoe, (2013), NSCA 48.

Other Scenarios

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Where the police seize a vehicle for the purpose of removing it from the road, there is a lessened expectation of privacy. Thus, any contents of the vehicle in plain view upon entering the vehicle can be seized.[11]

Police may search a vehicle to determine whether there are weapons found in the vehicle.[12]

A request by a police officer for a driver's licence and insurance is not a search.[13]

  1. ↑ R. v. Caslake, (1998) SCC 1 S.C.R. 145
  2. ↑ Cloutier v. Langlios, (1990) SCC 1 S.C.R. 158
  3. ↑ R. v. Liew, (2012), ONSC 1826
  4. ↑ R. v. Otchere-Badu, (2010), ONSC 1059
  5. ↑ R. v. Lanning, 2012 ABPC 171 following R v Franko, 2012 ABQB 282
  6. ↑ R. v. Manley, 2011 ONCA 128
  7. ↑ R. v. Terry Hull, 2011 ONSC 3139
  8. ↑ R. v. Giles, (2007) BCSC 1147, R. v. Dhillon, (2013),BCSC 869, R. v. Mann, (2012) BCSC 1247, R. v. Zahrebelny, (2013), NSCA 91,
  9. ↑ R. v. Vu, (2013) SCC 60, and R. v. Morelli, (2010) SCC 8, [2010 1 SCR 253]
  10. ↑ R. v. Hiscoe, (2013), NSCA 48, and R. v. Vye, (2014) [http://canlii.ca/t/g2r9n BCSC 93}
  11. ↑ R. v. Nicolisi 1998 CanLII 2006 (ON C.A.)
  12. ↑ R. v. Majedi 2009 BCCA 276 -- incident to arrest
  13. ↑ R. v. Hufsky, [1988] 1 S.C.R. 621 at p.637 1988 CanLII 72
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