When can the police search me?

When can the police search me?

Being confronted by the police and asked to submit to a search of your person or property is a stressful situation that causes a great deal of anxiety for most people. It’s important that members of the public are aware of their rights when it comes to police searches.

When conducting a search of your person or property, police officers have to follow specific rules to ensure they don’t infringe on your rights. When law enforcement crosses the line of what’s considered reasonable, the courts have made it clear they will not hesitate to protect a citizen’s rights.

The Canadian Charter of Rights and Freedoms protects you from unreasonable search and seizure. The police must conduct searches in a reasonable manner. If they violate a person’s rights in this process, a court may later decide that the evidence they found through the unreasonable search can't be used against you.

Earlier this year, Ontario’s highest court awarded a protestor at the G20 summit in 2010 $500 for the confiscation of swim goggles during an illegal search of his backpack. In its decision, the court ruled police had no right to search the man when he entered a public park and that in doing so, it violated his rights under the Charter.

“The freedom to engage in the peaceful public expression of political views is central to our conception of a free and democratic society, Justice David Brown wrote in his decision. “Freedom of expression requires zealous protection. The police infringed [the protestor’s] freedom of expression without lawful justification and violated his right to be free from unreasonable search and seizure, as well as from arbitrary detention.”

A search must be based on reasonable suspicion

The only way for police to conduct a lawful search in a situation like the one described above is if they had a reasonable suspicion that the person was committing an offence, such as carrying a weapon or illegal drugs.

For example, if the man had been acting in a way that would cause a reasonable person to believe he was drunk, that would mean he was violating the rule of intoxication in public. In this circumstance, police would be within their rights to search his bag to ensure there was no alcohol.

Reasonable suspicion is a standard lower than "reasonable and probable grounds,” according to the Canadian Criminal Law Notebook, a legal reference covering the principles and rules set out by the Criminal Code and case law.

"The main distinction is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts,” writes Peter J. Dostal. “It refers to the possibility of uncovering criminality, not the probability of doing so.”

Let’s look at another scenario. If police stop a driver for exceeding the speed limit, they can fine that person for violating the Highway Traffic Act. If, during the course of handing out the fine, the police smell burned cannabis, are they allowed to search the vehicle?

It depends. Under the Cannabis Control Act, it is forbidden to have any cannabis accessible to anyone in the vehicle. The police can conduct a search of the car if they believe there is cannabis that is illegally stored. Under the law, it must be sealed in its original packaging, or if it’s not, must be contained in an area of the vehicle where no one can access it, like the trunk.

Courts condemn Charter violations by police

But the smell of cannabis, in and of itself, doesn’t necessarily constitute reasonable grounds for police to search a car. As a criminal defence lawyer who frequently represents clients in these types of cases, it’s important to point out that there’s a huge difference in the odour of smoked cannabis versus fresh or dried product. In this case, the smell of smoked cannabis wouldn’t be enough to form reasonable grounds for searching the vehicle. If, on the other hand, the police smelled what they believed to be fresh product, they may have reasonable grounds to search the vehicle as it could indicate the cannabis hasn’t been properly sealed or stored.

There’s a torrent of case law to demonstrate that the courts will challenge allegations from police officers that stem from the perceived smell of drugs. In one case, a defendant was acquitted of marijuana and cocaine trafficking charges after police conducted a search of his vehicle during a routine traffic stop for an expired driving sticker and found a large quantity of drugs.

In his decision, Justice G. Paul Renwick ruled that both the arrest and the search of the defendant’s vehicle were improper and in violation of his Charter rights.

“I must consider the nature of the police conduct that infringed the defendant’s Charter rights and which lead to the discovery of the evidence,” the judge wrote. “The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the Court to dissociate itself from that conduct, by excluding evidence linked to that conduct. This helps to preserve public confidence in the rule of law.”

The rules around vehicle searches are different when police stop a driver for exceeding the speed limit by more than 50km/h, commonly known as stunt driving, an infraction under Ontario’s Highway Traffic Act. In this scenario, police are allowed to seize the vehicle and conduct an inventory search of it to document the contents.

It’s important to point out that police are not allowed to rely on the power granted by reasonable suspicion to a degree greater than they should. For example, if you’re stopped because of suspected impaired driving, but the police determine that you aren’t impaired, they can’t then remove you from the car and check to see if there’s any illegally stored alcohol.

Pat-downs and strip searches

If you are under arrest, police can conduct a pat-down search to ensure the person isn’t concealing any weapons or evidence related to the arrest. For example, if a retailer calls the police to report you have stolen clothing from their store, the police may conduct a pat-down search to determine if any of the stolen goods are on your person.

If you have been arrested and taken to a police station, an officer may conduct a strip search if they have reasonable grounds to suspect you may be hiding evidence. This would most likely happen in situations where a person is found with drugs, for instance.

Know your rights with search warrants

A search warrant is a written order from a judge or justice of the peace, giving the police the right to search a home and remove certain items they find.

If the police show up at your house with a search warrant, ask them to show you the warrant and check the information carefully to ensure it has your correct address as well as the date and hours for which the warrant is valid. You should also check the warrant for the signature or name of the judge or justice of the peace who ordered it. If everything is in order, you are obligated to comply. If the warrant contains incorrect information, advise the police, but don’t try to stop them from entering or executing their search.

In the execution of search warrants, police will sometimes discover items that aren’t included on the original warrant but are believed to be evidence related to a crime. For example, if they’re doing a search related to drugs and find firearms in the home, they may have to obtain an additional warrant to seize the guns. Usually, that means one of the officers will go back to their car to get a telewarrant or fax warrant.

In a large drug case I worked on several years ago, the police showed up at my client’s home to serve him with a speeding ticket, which is completely outside the standard procedure. They entered the house without a search warrant and found a large quantity of illegal drugs. After the fact, they obtained a search warrant so they could seize the drugs using proper procedure. In preparing my client’s defence, I discovered that a neighbour had tipped off police that they suspected my client was selling drugs from his home. At court, I successfully argued that the seizure of the drugs wasn’t conducted properly, because of how police discovered them. The court agreed, and the bulk of that evidence was excluded from the case.

In many cases, search warrants will also stipulate that anything police find that is not expressly detailed in the warrant, but that may be related to the alleged crime can be seized. For example, if the police search a suspect’s home looking for evidence of child pornography, the warrant will usually include computer hard drives, phones, CDs, DVDs or USBs. If police discover additional devices that may contain evidence of a crime during the search, it will be covered under the warrant. However, if they found a large quantity of cocaine during the course of their search, they would have to obtain another search order for it, unless it was in clear view.

Can the police search my phone without a warrant?

Our mobile phones are like minicomputers that house lots of private and sensitive information like passwords, banking and health information and location data. If a police officer wants to search your phone, they must have reasonable grounds to suspect your involvement in a crime, and they must obtain a search warrant.

People often make the mistake of complying with a police officer’s request to look at their phone, thinking they don’t have anything to hide and wanting a swift resolution to their interaction with law enforcement. My advice to anyone in this situation is to let the police get a warrant before allowing them to search your phone. It’s important to ensure they’re collecting evidence independently and that you’re not simply handing them the evidence they need to implicate you in a crime.

When phones are seized using a search warrant, it usually means you won’t see the phone again for months. Often, police outsource this task to a third-party to ensure the imaging of the data on the phone is conducted properly.

Choose experienced legal counsel

Dealing with the police and the criminal justice system in cases stemming from searches and seizures is a serious matter that requires a skilled and experienced legal advocate. I have successfully represented numerous clients who have been charged with crimes following unlawful searches of their person and property. If you have been charged with a criminal offence following a police search, call me for a free consultation.