An Officer Wants To Conduct A Search – What Are My Rights?

Officers maintain the ability to conduct searches of persons and their property and seize evidence. These powers infringe on the liberty of the individual. There must be a balance between the interests of the individual to be free from intrusions of the state against the state’s interest in pursuing credible tips to maintain peace and order. The Charter protects the individual’s rights against unreasonable search and seizure (S. 8).

When are Police Legally Allowed to Search Me?

The police generally do not have the power to search you. They can search you once you have been placed under arrest. If there has been a valid arrest, the officers are entitled to conduct a search. They cannot do a full-body search but can conduct a ‘pat-down’, this is called a search incident to arrest. The purpose of conducting a search incident to arrest, is first, to ensure the safety of officers, the accused and the public, and secondly to gather any evidence to be used at trial. Anything they find while conducting a search can be seized. If you are carrying anything such as a bag, purse or backpack when arrested or detained, the officers are legally allowed to search these items, and if you are arrested in a car, they can search the car as well. Officers can look in your car windows when they stop you, and if they see anything illegal in plain sight or view, that could provide grounds for an arrest, and thereafter, a search.

If you believe you have been wrongfully searched, tell the officer you do not consent to the search. However, do not resist or fight with an officer as this could result in a further criminal charge. Let them complete the search then consult with a lawyer. They will be able to determine if you had a reasonable expectation of privacy and if, in fact, your s. 8 Charter rights have been violated.

Can I be Arrested if the Police Don’t Have a Warrant?

Yes, the police do not need an arrest warrant where they have reasonable and probable grounds to believe you have committed an offence or where the officer finds you committing an offence.

What if the Police Have a Search Warrant?

A warrant is a judicial authorization to enter a property and conduct a search. A warrant must be obtained where there is a reasonable expectation of privacy. Officers entering without a warrant is prima facie unreasonable. To obtain a warrant, officers must demonstrate valid grounds to gain authorization to conduct a search, and describe what they hope to find, such as;

1. And item connected to an offence that has been committed
2. The whereabouts of a person who committed an offence
3. An item used in the commission of a crime
4. Property relating to criminal organizations

Search warrants must be specific and outline exactly what the police are looking for. Officers can seize any illegal items that they discover. I addition, they can seize any other item that may have evidentiary value. Based on what is seized, officers may arrest you.

Step One: When executing a warrant, police must first identify themselves at the door, and they should provide you with a copy of the search warrant. If they do not, you have the right to ask to see it. If you notice an error on the warrant such as an incorrect address, date/time, or the signature of the judge is missing, you can refuse the police entry.

Step Two: A valid warrant authorizes police officers to conduct a search. Do not attempt to argue or fight with the officers, this could result in being charged with “Obstructing Police”. Let them in, and contact a lawyer at first opportunity. Keep track of what’s going on, record what they said, touched, took, by writing this information down or taking pictures.

Keep in mind, that the warrant does not extend to searching you personally or the people on the property unless you are arrested. Officers often will conduct a quick pat-down after entry to ensure you have no weapons.

Confirming the warrant is valid, ensures police accountability when conducting searches, as searching a home, is a significant invasion of privacy.

Can the Police Enter my Property Without a Warrant?

In certain circumstances, the police can enter your property without a warrant. In emergencies, or where police are in “hot pursuit” of a suspect are examples of instances that may justify a warrantless entry. Also, entry can be valid where there is imminent danger, or situations where evidence may be destroyed.

At Passi & Patel, our defence lawyers in Mississauga, Milton, and Brampton understand legal issues can be stressful. Please call us at 905-459-0004 or e-mail us at info@passipatel.com to schedule a telephone or virtual consultation.