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Search without Warrant

Search without Warrant. Advanced Patrol Training.

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Search without Warrant

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  1. Search without Warrant Advanced Patrol Training

  2. You have been dispatched to a noisy party complaint. As you approach the residence, you can hear loud music coming from the residence. One unknown caller reported that someone from the residence had thrown a beer bottle onto the street narrowly hitting her car as she drove by the house. You find evidence of broken beer bottles on the street. You and your partner attend the front door to speak to the owner of the residence. You bang on the door, and get no response. You slightly open the door and yell for the owner, identifying you as the police. Still getting no response, you open the front door, and can see the kitchen. On the kitchen counter, you see a number of individually wrapped baggies of suspected marihuana, several marihuana cigarettes, a variety of other assorted pills you believe to be either LSD or Ecstasy, and an assortment of drug paraphernalia. You are uncertain as to the number of individuals in the home. SCENARIO

  3. What are you going to do in this situation? Does the situation change if you had entered the residence, in your attempt to contact the owner, and saw the controlled substances and drug paraphernalia in another room? DISCUSSION

  4. Rather than asking “Do I need a warrant?”- Officers should ask themselves what pertinent question prior to conducting the warrantless search? “If I am going to conduct this warrantless search, what is my lawful authority for doing so?” (vehicle, locker, bedroom, cell phone, etc.) THE BIG QUESTION

  5. Warrantless Search Authorities Foundations of Warrantless Search – Subjective and Objective Grounds Required Informed Consent Search Seizure Authorities - (C.C.) – Plain-View Doctrine Search Incident to Arrest Expectation of Privacy – People NOT Places Exigent Circumstances Case Law Developments OBJECTIVES

  6. Warrantless search is presumed unreasonable. Hunter et al. v. Southam Inc.(S.C.R.) This presumption can be rebutted if search was conducted by: legislative or common law authority; consent; exigent circumstances. Requisite Subjective and Objective Grounds OPVTA PROGRAM

  7. Preserve evidence Prevent death or bodily harm Based on situational analysis EXIGENT CIRCUMSTANCES

  8. There was consent Giver had authority Consent voluntary Aware could refuse or withdraw Aware of consequences R. v. Wills O.C.A. CONSENT SEARCH

  9. CASE STUDIES

  10. Plain View 1) lawfully on premise 2) items in plain view & unexpected P.V. Codified - seize evidence for offence against any federal statute s. 489(2) C.C. - note: P.V. is not a search authority but a seizure authority Consider securing premise and obtain C.D.S.A. warrant to search and seize CASE #1

  11. Public safety (impending danger) s. 117.04 (2) C.C. - search and seize without warrant – weapon(s), ammo, licences, registrations, etc. If no impending danger - warrant required, s. 117.04(1) C.C. Return to Justice Forthwith CASE #2

  12. Reasonable expectation of privacy – high degree – no exigent circumstances, then must obtain 11(1) C.D.S.A. Seize substance from mother – initial seizure is not a Charter breach – mother was not acting on behalf of police or under the instructions/directions of the police CASE #3

  13. Diminished expectation of privacy on school property Not acting on behalf of police or directed by police Search must be non-intrusive, where reasonable grounds exist and the situation must be a safety issue for the students, i.e., weapons, drugs R. v. M.R., & A.M., S.C.R. CASE #4

  14. Search incident to arrest - the accused and area under his control (may extend to trunk of vehicle – if trunk searched, must be because of reasonable prospect of finding further evidence for which he was arrested for ) Subjective and objective analysis R. v. Caslake, S.C.R., R. v. Polashek, Alkin, Shankar, O.C.A., Et al CASE #5

  15. Liquor unlawfully kept in vehicle or boat (s. 32(5) L.L.A) CASE #6

  16. Offence committed in relation to restricted firearm (s.117.02(1) C.C.) Exigent circumstances OR Alternatively, arrest on R.G. and common law authority - search incident to arrest CASE #7

  17. Search car and occupants (s. 32(5) L.L.A.) Seize liquor (s. 47 L.L.A.) CASE #8

  18. Reasonable Grounds equipped with radar detector Stop, enter and search (s. 79(2) H.T.A.) Not extended to persons CASE #9

  19. No authority to search impounded vehicle exists under service policy (R. v. Caslake S.C.R.) Ont. Court of Appeal (R. v. Nicolosi) - section 221 H.T.A. authorizes entry into vehicle to itemize valuables in plain view – ‘custody’ means ‘responsibility’ - R v. Wint, Benjamin, Lamour, Nuguyen, Catroppa, Egonu, Wynter, Et al CASE #10

  20. REVIEW • Search/Seizure authorities in Criminal and Provincial Law • Foundations of Warrantless Search – Objective and Subjective Grounds • Case Law Developments • Five Conditions of Consent Search • Scope of Search Incident to Arrest • Review study guide • OPVTA Program(s) and Training Package – Vehicle Search Authorities & Articulation & Foundations of Warrantless Search & APT Newsletters APT Newsletter

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