Searches Law 120
Searches • The law must seek a balance between an individual’s right to privacy and the state’s need to conduct a thorough investigation. • Statute and common law must carefully explain at what point the police may conduct searches during a criminal investigation and what evidence they can collect. • In general, the police must obtain a warrant to conduct a search but there are exceptions to the rule.
Searching a Person • The police do not have to obtain a warrant to search a person if they have just been arrested. They do have to satisfy 3 conditions for this exception to be legal. • The arrest must be lawful • The search must be connected to the lawful arrest. • The manner in which the search is carried out must be reasonable.
Searching a Person (cont) • Except in the case of impaired driving, an arrested person does not have to provide the police with a breath, blood or urine sample unless compelled to by a warrant. Even with a warrant the arrested person usually can talk with a lawyer beforehand. • In the cases of murder the police can obtain a warrant that forces a person to provide a sample for DNA profiling
Searching a Person (cont) • To ensure the arrested person is not carrying weapons or concealing evidence, the police will do a ‘pat-down’ immediately after arrest. A more thorough search may take place at the police station • The practice of strip searching suspects, event hose arrested for non-violent crimes, has been relatively common in Canada. The guidelines are: • the police have reason to believe the accused is concealing a weapon, drugs or other evidence. • The search is authorized by a senior officer. • The search is done by an officer of the same sex • Searches of body cavities are only done by medical personnel
Searching a Place • In most cases the police must obtain a warrant before searching places such as a residence, an office, or a storage area. • A search warrant is a court document that gives the police the right to search a specific location. Warrant must be properly filled out as an irregularities may result in the court throwing out evidence gained through faulty warrants
Searching a Place (cont) • To obtain a warrant, police must deliver a sworn information to a judge/justice of the peace. Info specifies the crime, items police are looking for, the reasonable grounds the police have for believing those items will be found at the location indicated. • For searching a residence, the warrant usually specifies one day during which the search will be carried out. Unless otherwise noted, searches must take place during daylight hours (between 6am and 9pm)
Searching a Place (cont) • Before conducting the search the police must identify themselves and show the warrant to the person living or working in the place to be searched. • During the course of a search, the police may confiscate other items not listed in the warrant, as long as these items are related to the crime and out in plain view.
Searching a Place (cont) • Any confiscated items will be kept in police custody until the trial. Other items must be returned to the owner within three months. • In cases where the police believe they must act quickly to preserve evidence, they must obtain a telewarrant. A telewarrant is a search warrant obtained over the phone or by fax. Info is given to the judge over the phone who files it with the court. The officers make a facsimile warrant and show this warrant at the scene of the search.
Searching a Place (cont) • A warrant is always needed to search a private home with two exceptions. These exceptions are when the police have reasonable grounds to believe that: • Imminent injury or death to any person. • The destruction of evidence relating to an indictable offence.
Searching a Place (cont) • The Controlled Drugs and Substances Act gives the police the authority to search any premises except a person’s residence without first obtaining a warrant. • Anyone found within the premises can also be searched if the police have reason to believe they are carrying illegal drugs. • Provincial liquor laws allow police to search vehicles for illegal alcohol without a warrant. • A warrant is still necessary to search a residence for illegal alcohol.
Procedures After Arrest • A number of procedures may follow such as: • photographs • Fingerprinting • Line-up • Only those charged with an indictable offence may be fingerprinted or photographed. If the police do not charge the person or they are acquitted in court, the record is saved for 10 years before being destroyed. • Police do not have the right to force someone to take part in a line-up. A line-up is a grouping of suspects show to a victim or witness for the purpose of identifying the perpetrator. Line-ups usually consist of the same gender and share same general characteristics (age, build, height) • Depending on a lawyer’s advise and the circumstances of the case, the defendant may participate or refuse to do so. Sometimes co-operating will help the defendant’s case.
Pre-Trial Release • Once a person has been arrested and processed, the police may release the accused until trial. • Release normally automatic for summary or indictable with fines of $5000 or less. • Police must believe person will show up in court voluntarily and not commit offences while waiting for trial. • Accused signs a promise to appear which means if they do not show up the court will issue a bench warrant for their arrest.
Pre-Trial Release (cont) • In some cases, an accused may be required to sign a recognizance which carries a fine of $500 if the person fails to appear. If the person comes from more than 200km, a deposit is usually required. • The police may also request a surety, which requires someone else willing to pay a certain some of money if the accused fails to appear. That person musts also sign the recognizance form.
Bail • Usually the police will try to keep suspects accused of serious indictable offences in custody after arrest. In such cases, the accused as the right to a bail application. • Bail is a temporary release of a prisoner who posts a sum of money or other security to guarantee his/her appearance in court. • Charter guarantees no one will be denies reasonable bail without just cause. If the Crown does not want the accused released, they request a show-cause hearing to explain to the judge why the accused should not be release. Reasons could include risk to re-offend, flight risk, public safety. If the Crown is successful the accused remains in jail until trial.
Bail (Cont) • Some circumstances require reverse onus which means the burden shifts to the defence. Instead of the Crown having to show why they should not be released the defence must show why the accused should receive bail. • Reverse onus applies in situations: • The accused is charged with committing an indictable offence while already out on bail. • The offence is indictable and the accused is not a Canadian citizen • The accused involves failure to appear or a breach in a bail condition • The accused is charged with importing, trafficking, or possession for the purpose of trafficking narcotics (or conspiracy to commit any of these offences) • If the accused falls into one of these categories, bail will be denied unless accused convinces judge that he/she will attend court, not commit a crime and not interfere with the administration of justice in any way.
Habeas Corpus • A writ of habeas corpus is not a solution that is commonly used when bail is denied. • If an accused believes he/she has been illegally detained, that person can file a writ of habeas corpus to appeal the court’s refusal to a higher court. • The writ requires the Crown to produce the detained person in court and then give reasons to justify keeping this person in custody until trial. It also requires the Crown to show that the prisoner has not been mistreated in any way. • If the Crown cannot justify the continued detention of the prisoner to the higher court, the court may release the prisoner until trial.