PUBLISHED ON February 18, 2022
It is often the case that police require a warrant to search a person’s home. There are occasions, however, when the police can search a person’s home without a warrant and even without a person’s consent. One example of this is when a person is lawfully arrested within their home. But what are the acceptable parameters of this kind of search? Where in the house can the police go? When does a lawful search become unlawful? What follows below is for informational purposes only. For specific information and for legal advice, you will need to contact a criminal law professional to discuss the specifics of your case.
The Search Must be Truly Incidental to Arrest
For the purposes of this article, it is assumed that the police have lawfully arrested a person within their home (if the person was unlawfully arrested, any subsequent search is deemed unlawful) and that no search warrant has been issued.
Most recently, the Supreme Court of Canada dealt with this issue in the case of R. v. Stairs. The Court concluded that the common law standard for a search of a home incident to arrest must be modified, “depending on whether the area searched is within or outside the physical control of the arrested person. Where the area searched is within the arrested person’s physical control, the common law standard continues to apply”. That is, police are allowed to search a person incident to a lawful arrest and to search their immediate surroundings to secure evidence of the offense for which the accused is being arrested. However, where the area is outside of the arrested person’s physical control but is “still sufficiently proximate to the arrest, a search of a home incident to arrest for safety purposes will be valid only if:
- The police have reason to suspect that there is a safety risk to the police, the accused, or the public which would be addressed by the search; and
- The search is conducted in a reasonable manner, tailored to the heightened privacy interests in a home
To meet this stricter standard, the prosecutor must show “objective facts [that] rise to the level of reasonable suspicion, such that a reasonable person, standing in the shoes of the police officer, would have held a reasonable suspicion”. It must be noted too, that the police can always apply for a search warrant after arrest to search the entire house – assuming they can demonstrate the grounds for such an intrusive search.
What if the Individual is not Under Arrest?
If the person is not under arrest, and is instead, standing inside their doorway, that person retains a strong expectation of privacy in their home and the police require “heightened grounds to justify entry – i.e., a reasonable belief in imminent harm. Such a reasonable belief may be found if the police, for example, are responding to a call related to domestic violence and observe the person at the door holding a knife. Assuming a lawful arrest, the police are permitted to search the area within the arrested person’s physical control. Again, where the area to be searched is outside the arrested person’s physical control, but is sufficiently proximate to the arrest, the police are required to have reason to suspect that the search will “further the objective of police and public safety, including the safety of the accused”. The nature and extent of the search have to be tailored to the purpose of the search always keeping in mind the heightened privacy interests in a home. The old saying that a person’s home is their castle, still carries weight.
Should the police violate a person’s right to be secure against an unreasonable search and seizure, that person can apply for relief under the Canadian Charter of Rights and Freedoms.
Call Brian Ross Criminal Defence Lawyer at (416) 658-5855 today to schedule a consultation or chat about charges involving a search of a home.
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