Body search, car search, phone search… Was the police search unreasonable? Was the search legal? Is an illegal search grounds for an acquittal? Our criminal lawyers help you see things more clearly and understand your rights.
One thing is certain: we are all protected against unreasonable searches by police officers (this right is specifically set out in section 8 of the Canadian Charter of Rights and Freedoms).
Did you know? A warrantless search is presumed to be unreasonable. However, a search will not be unreasonable if it is authorized by law, if the law itself is reasonable and if the search was carried out in a reasonable manner.
Through four illustrated scenarios, we shed light on the police power to search without a warrant.
Scenario 1 – Pierre is stopped on the road
Pierre is driving his Honda Civic when he hears sirens and sees a police car approaching with its lights flashing. He has run a red light.
Pierre pulls over onto the shoulder and nervously waits for the officer. As the officer approaches the vehicle, he notices a firearm in plain view on the passenger seat of the Honda Civic. The officer immediately arrests Pierre for unauthorized possession of a weapon in a motor vehicle. Pierre wonders whether he will be searched.
Can the officer search Pierre without a warrant?
First, it is important to note that a police officer is never required to search a person after arresting them. However, the law recognizes that a police officer has the power to search a person they have arrested. This is known as the power of search incident to arrest.
There are three main reasons that allow a police officer to carry out this type of search : ensuring their own safety and that of the public, preventing the destruction of evidence by the arrested person or others, and discovering evidence.
To achieve one or more of these objectives, a police officer can therefore search the arrested person and their immediate surroundings.
Let’s go back to Pierre’s example. The officer arrested him after seeing a firearm in his vehicle. It is therefore legitimate for the officer to search Pierre to ensure his own safety and that of the public, given the danger such a weapon can pose.
Can the officer search Pierre’s vehicle?
As mentioned above, a police officer has the power to search the immediate surroundings of a person they have arrested. When a police officer arrests a person who is behind the wheel of their motor vehicle, it is recognized that the vehicle is within their immediate surroundings. This means that the officer can search it.
Be careful: this does not mean the officer is justified in searching every corner of the vehicle. The specific circumstances of each case must be assessed.
If your motor vehicle was searched after your arrest, consult one of our criminal lawyers to make sure the search was legal. There are ways to challenge an illegal search.
Back to Pierre’s case: the officer has the power to search his Honda Civic, which is within his immediate surroundings. The officer is justified in doing so to ensure his safety and to discover evidence, such as other firearms Pierre might have in his possession.
Scenario 2 – Camille is suspected of committing a crime
Camille is walking down the street when two police officers approach her. They tell her that she is detained (not arrested) because they suspect she is linked to a robbery that took place a few minutes earlier at a nearby convenience store, and that her detention is necessary for the investigation. The officers tell Camille that they are going to search her.
Can the officers search Camille without a warrant?
Unlike Pierre in the previous scenario, Camille is not under arrest. Instead, she is subject to what is called an investigative detention. In this situation, police officers can detain a person if they have reasonable grounds to suspect that the person is involved in a particular recent or ongoing crime, and if detaining them is reasonably necessary.
Investigative detention does not give police officers a search power as broad as the one that is incident to a formal arrest. The officers can only carry out a search if they have reasonable grounds to believe that their safety or that of others is at risk and that, in the circumstances, the search is reasonably necessary.
Depending on the specific circumstances of Camille’s situation, the officers may have reasonable grounds to believe that their safety is at risk. They suspect Camille of having committed a robbery, which involves an element of violence. Camille could therefore be searched without a warrant.
But what kind of search?
As explained above, the police power to search without a warrant incident to an investigative detention is much more limited than the power incident to an arrest. In this case, the officers are limited to what is called a “ pat-down search ”. The officers can touch or pat down the detained person, but they cannot search the person’s immediate surroundings, or even search their pockets.
In Camille’s case, opening and searching her handbag would necessarily be illegal. The situation could be different, however, if Camille were arrested, in which case the officers’ search power would be broader.
Caution : In practice, police officers may ask the person for permission before searching them, especially if they know the search they have in mind is not allowed under their powers. Searches to which the person has given valid consent are generally legal.
Scenario 3 – Searching Francis’s cellphone
Francis is arrested for cocaine trafficking. While the officers are carrying out the search incident to Francis’s arrest, they find his cellphone in one of his pockets. The cellphone keeps vibrating. Francis is receiving several text messages and calls. The officers suspect that Francis’s customers and other traffickers are trying to reach him.
The officers then start examining the contents of Francis’s cellphone, which he does not particularly appreciate.
Can the officers search Francis’s phone?
Because searching a cellphone raises particular privacy concerns, this type of search is subject to a specific legal framework. The rules set out above in connection with Pierre’s arrest therefore do not automatically apply to the search of Francis’s cellphone.
First, you should know that police officers are not allowed to search the entire contents of the cellphone of a person under arrest. The search must be related to the offence for which the person was arrested. Generally, recent emails and text messages, photos and the call log are what the officers can examine. In addition, the officers can look at these items on the cellphone, but cannot download them without obtaining a warrant.
Second, if the officers want to search a cellphone without a warrant to discover evidence, they can do so only if their investigation would otherwise be stymied or significantly hampered. Police officers therefore cannot search a cellphone for convenience or because it is easier.
Third, the officers must take detailed notes of the search. This includes notes on the extent of the search, when it took place, its purpose and its duration.
In Francis’s case, it is possible that the officers could search his cellphone, for example to try to find evidence of his cocaine trafficking. However, this search power is far from automatic, and the facts of Francis’s situation are too brief to determine whether the search is legal.
If police officers searched your cellphone after your arrest, contact one of our criminal lawyers.
What if Francis had been arrested for impaired driving?
As mentioned above, searching a cellphone is subject to special rules. The Supreme Court of Canada, the country’s highest court, recognized in Fearon that such a search is not automatically justified.
Generally, searching a cellphone may be justified in the case of arrests for violent crimes, crimes that pose a risk to public safety, serious property offences or crimes involving drug trafficking. As a result, such a search should not generally take place in the case of minor offences.
This means that if Francis had instead been arrested behind the wheel of his vehicle for driving while impaired by alcohol or drugs, the officers could not have searched his cellphone.
Scenario 4 – Lydia is afraid of being strip-searched by the police
Lydia was arrested for assaulting a friend she had an argument with. Lydia is very modest and is afraid the police will strip-search her. She saw on her favourite TV show that police officers often carry out this kind of search. Is that really the case?
Can the police strip-search Lydia?
It goes without saying that warrantless strip searches are a very serious intrusion on the privacy and dignity of the people subjected to them. For this reason, this type of search is subject to stricter rules than the searches discussed above.
First, police officers are strictly prohibited from routinely strip-searching the people they arrest. To carry out a strip search, the officers must have reasonable grounds to believe that a strip search is necessary in the particular circumstances of the arrest. Also, officers can carry out a strip search only to discover weapons or evidence related to the arrest. The power to strip-search is therefore very limited.
Next, except in an emergency, strip searches must generally be carried out at the police station. They must also be carried out in a reasonable manner, with respect for the rights and dignity of the arrested person, based on the particular circumstances of each case. For example, the officers must give the arrested person the opportunity to remove their own clothing; otherwise, the search could be considered unreasonable.
In Lydia’s case, a strip search would clearly not be justified and would be illegal. Given the offence for which she was arrested, there are no reasonable grounds to believe that a strip search is necessary.
What happens if the search is illegal?
This article briefly sets out the rules that apply to certain warrantless searches, which are presumed to be unreasonable.
When the defence lawyer believes that the warrantless search of their client was illegal, they can try to negotiate with the prosecutor, for example to have the charges changed, to obtain a more lenient sentence or even to have the charges withdrawn.
Otherwise, the question of whether the search was legal can be submitted to the court through a written application. If the court finds that the search was illegal, the evidence obtained from it could be excluded. If the prosecution cannot produce other evidence, this could result in the accused person’s acquittal.
Contact us
If you have been subjected to a body search, a search of your car or a search of your cellphone, contact our criminal lawyers to learn about your rights.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
