JUST 1010 Lecture Notes - Lecture 4: Plain View Doctrine, Exigent Circumstance, Writ Of Assistance
Search
Looking for things, including the spoken words to be used as evidence of an offence
-
Seizure
The taking of a thing from a person without their consent by a public authority for a lawful
purpose.
-
Introduction
THE PRESUMPTION IS THAT SEARCH REQUIRES A WARRANT
•
A "search" is an invasion of privacy.
-
The Charter protects people not places
-
An invasion of privacy without a warrant is presumed to be an unreasonable search and
therefore a breach of section 8 of the Charter unless we can justify the search using the
exceptions where no warrant is required.
-
THE LEGAL TEST -FOR A REASONABLE SEARCH
A search will be reasonable and therefore valid if that search:
Is authorized by a statute without a warrant and the statute itself is reasonable and the manner
in which the search is carried out is reasonable.
-
A judicial officer has authorized the search in advance after receiving information under oath
(e.g. warrant, general warrant) and the search is carried out in a reasonable manner.
-
There is a clear exception to the requirement of prior judicial authorization and the search is
carried out in a reasonable manner.
-
Unreasonable / Unlawful search and seizure
A search and or seizure that is conducted without lawful authority
Or with malice
Consequences are:
Criminal liability
→
Civil liability
→
Charter remedy
→
Most Common Search Authorities
Search incident to arrest (no warrant)
•
Investigative detention (no warrant)
•
With Consent (no warrant)
•
Warrant
•
Plain view doctrine (with or w/o warrant)
•
Exigent Circumstances
•
Firearms (sec 117.02 & 117.04(2) C.C.)
•
Drugs Sec 11(7) C.C.
•
Incidental to Arrest
Judicial authorization not needed.
-
Evidence relating to any offence
-
Items that could be used to cause injury,
-
Items that could be used to escape
-
Immediate surroundings can be searched
-
Do you need R & PG to search incidental to arrest?
NO! It is common law!
→
Delay between Arrest and Search
Not defined by the Supreme Court
-
Delay may occur
-
You can search more than once
At scene
→
At police car
→
At station
→
-
As with everything, It must be reasonable
-
Must be able to explain the delay
-
What Can Happen if You do NOT Search a Prisoner?
Investigative Detention Reminder . . .
Judicial authorization not required
-
Pat down
-
For weapons only
-
The Crown must establish on the balance of probabilities that
the consent was voluntary, knowing and informed.
-
the giver of consent was aware of the right to refuse consent and the potential consequences of
giving consent
-
Sec 487 et al
Search Warrants
-
Plain View
-
Exigent Circumstances
-
General Warrants
-
Tracking Warrants
-
Video Warrants
-
Covert Entry Warrants
-
Production Orders
-
DNA Warrants
-
Plain View Doctrine
Section 489 CC
•
A police officer may (when lawfully in a place)
Pursuant to a warrant
-
Or other legal purpose
-
Seize anything (without warrant) that on R & PG she believes:
Has been obtained
→
Has been used
→
Will afford evidence of an offence against the Criminal Code or any act of Parliament
→
-
Exigent Circumstances
487.11 A peace officer . . . may, [search] without a warrant if the conditions for obtaining a
warrant exist but by reason of exigent circumstances it would be impracticable to obtain a
warrant.
Accused arrested outside his house, 14 feet from the door for firearm offences
→
Police believed a firearm was in the house
→
Suspected someone else might be in the house
→
Search conducted without warrant for safety
→
Supported by courts
→
Exceptional circumstances –defined as when law enforcement interest are so compelling
that they override the charter protection to privacy within a home -
→
•
Involves great urgency with a clear need to protect persons or property from imminent serious
harm where there isn't time to obtain a warrant
-
You must articulate the reason for your action and demonstrate you had reasonable and
probable grounds.
-
The more serious the potential consequences of a situation, the more the court will tolerate an
action that may violate certain provisions of the charter.
-
A Search Warrant
487. (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable
grounds to believe that there is in a building, receptacle or place
•
anything on or in respect of which any offence against this Act or any other Act of Parliament
has been or is suspected to have been committed,
(a)
anything that there are reasonable grounds to believe will afford evidence with respect to the
commission of an offence, or will reveal the whereabouts of a person who is believed to have
committed an offence, against this Act or any other Act of Parliament,
(b)
anything that there are reasonable grounds to believe is intended to be used for the purpose of
committing any offence against the person for which a person may be arrested without warrant,
or
(c)
(c1) any offence-related property.
may at any time issue a warrant authorizing a peace officer or a public officer . . . And who is
named in the warrant
•
to search the building, receptacle or place for any such thing and to seize it, and(d)
subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized
before, or make a report in respect thereof to, the justice or some other justice for the same
territorial division in accordance with section 489.1.
(e)
The Information to obtain the Search Warrant
Who is asking
•
Place to be searched
•
Offence committed or suspected
•
Items to be searched for
•
Grounds to Believe that an Offence has been / is being committed
•
Grounds to believe that the Things to be Seized will afford evidence of the offence
•
Grounds to Believe that the Things to be Seized are at the Place to be Searched
•
Informant name and signature etc.
•
EXECUTION OF SEARCH WARRANT
A search warrant for a dwelling will not authorize search of out buildings.
-
If you want to search out buildings, describe and name them specifically and explain why what
you are looking for is likely to be there.
-
Entry must be during daylight hours, unless specifically authorized in the warrant.
-
The Ontario Court of Appeal has ruled that a night search of a residence ought only to occur in
exceptional circumstances other wise it is unreasonable and a Charter breach.
-
Accountability &
Limitation as two
important words!
Plain View Doctrine:
The rule that allows a law
enforcement officer to seize
evidence of a crime, without
obtaining a search warrant,
when that evidence is in plain
sight.
-
PLAIN DOCTRINE MEANS THIS:
chasing a bad guy.. puffing and
huffing, run into house, tackle
guy, under arrest-search the
guy. Under common law
authority of incident to arrest-if
you arrest the guy in his living
room you can search him & the
immediate surroundings. Need
to justify why you are searching
wherever. You see a handgun on
the counter, you have the right
to seize the gun. Even if it is
registered, you can seize it
without a warrant. Anything that
is illegal and you find-you can
seize! Only if it was reasonable
to be found. Ex. warrant to find
a stolen bike-can't reasonably
find gun in counter*
FORM 1
(Section 487)
INFORMATION TO OBTAIN A SEARCH WARRANT
Canada,
Province of Ontario
This is the information of ……………….. of ......................... in the said Province of Ontario,
(occupation), hereinafter called the informant, taken before me.
The informant says that
(describe things to be searched for and offence in respect of which search is to be made),
and that he believes on reasonable grounds that the said things, or some part of them, are in the
(dwelling-house, etc.) of ……….. of ................, in the said Province of Ontario.
(Here add the grounds of belief, whatever they may be.)
Wherefore the informant prays that a search warrant may be granted to search the said
(dwelling-house, etc.) for the said things.
Sworn before me this .......... day of .........., A.D. .........., at ..............
(Signature of Informant)
A Justice of the Peace in and for the Province of Ontario.
Let’s Practice
You must appear before His Worship, Justice of the Peace, Dino Doria.
Every member of your group will contribute to an information to obtain.
Write it out.
Present it to His Worship for his decision to grant a search warrant or not.
This is worth 15% of your final course mark.
W4 Search and Seizure
Thursday,+ February+ 1,+2018
8:03+AM
Search
Looking for things, including the spoken words to be used as evidence of an offence
-
Seizure
The taking of a thing from a person without their consent by a public authority for a lawful
purpose.
-
Introduction
THE PRESUMPTION IS THAT SEARCH REQUIRES A WARRANT
•
A "search" is an invasion of privacy.
-
The Charter protects people not places
-
An invasion of privacy without a warrant is presumed to be an unreasonable search and
therefore a breach of section 8 of the Charter unless we can justify the search using the
exceptions where no warrant is required.
-
THE LEGAL TEST -FOR A REASONABLE SEARCH
A search will be reasonable and therefore valid if that search:
Is authorized by a statute without a warrant and the statute itself is reasonable and the manner
in which the search is carried out is reasonable.
-
A judicial officer has authorized the search in advance after receiving information under oath
(e.g. warrant, general warrant) and the search is carried out in a reasonable manner.
-
There is a clear exception to the requirement of prior judicial authorization and the search is
carried out in a reasonable manner.
-
Unreasonable / Unlawful search and seizure
A search and or seizure that is conducted without lawful authority
Or with malice
Consequences are:
Criminal liability
→
Civil liability
→
Charter remedy
→
Most Common Search Authorities
Search incident to arrest (no warrant)
•
Investigative detention (no warrant)
•
With Consent (no warrant)
•
Warrant
•
Plain view doctrine (with or w/o warrant)
•
Exigent Circumstances
•
Firearms (sec 117.02 & 117.04(2) C.C.)
•
Drugs Sec 11(7) C.C.
•
Incidental to Arrest
Judicial authorization not needed.
-
Evidence relating to any offence
-
Items that could be used to cause injury,
-
Items that could be used to escape
-
Immediate surroundings can be searched
-
Do you need R & PG to search incidental to arrest?
NO! It is common law!
→
Delay between Arrest and Search
Not defined by the Supreme Court
-
Delay may occur
-
You can search more than once
At scene
→
At police car
→
At station
→
-
As with everything, It must be reasonable
-
Must be able to explain the delay
-
What Can Happen if You do NOT Search a Prisoner?
Investigative Detention Reminder . . .
Judicial authorization not required
-
Pat down
-
For weapons only
-
The Crown must establish on the balance of probabilities that
the consent was voluntary, knowing and informed.
-
the giver of consent was aware of the right to refuse consent and the potential consequences of
giving consent
-
Sec 487 et al
Search Warrants
-
Plain View
-
Exigent Circumstances
-
General Warrants
-
Tracking Warrants
-
Video Warrants
-
Covert Entry Warrants
-
Production Orders
-
DNA Warrants
-
Plain View Doctrine
Section 489 CC
•
A police officer may (when lawfully in a place)
Pursuant to a warrant
-
Or other legal purpose
-
Seize anything (without warrant) that on R & PG she believes:
Has been obtained
→
Has been used
→
Will afford evidence of an offence against the Criminal Code or any act of Parliament
→
-
Exigent Circumstances
487.11 A peace officer . . . may, [search] without a warrant if the conditions for obtaining a
warrant exist but by reason of exigent circumstances it would be impracticable to obtain a
warrant.
Accused arrested outside his house, 14 feet from the door for firearm offences
→
Police believed a firearm was in the house
→
Suspected someone else might be in the house
→
Search conducted without warrant for safety
→
Supported by courts
→
Exceptional circumstances –defined as when law enforcement interest are so compelling
that they override the charter protection to privacy within a home -
→
•
Involves great urgency with a clear need to protect persons or property from imminent serious
harm where there isn't time to obtain a warrant
-
You must articulate the reason for your action and demonstrate you had reasonable and
probable grounds.
-
The more serious the potential consequences of a situation, the more the court will tolerate an
action that may violate certain provisions of the charter.
-
A Search Warrant
487. (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable
grounds to believe that there is in a building, receptacle or place
•
anything on or in respect of which any offence against this Act or any other Act of Parliament
has been or is suspected to have been committed,
(a)
anything that there are reasonable grounds to believe will afford evidence with respect to the
commission of an offence, or will reveal the whereabouts of a person who is believed to have
committed an offence, against this Act or any other Act of Parliament,
(b)
anything that there are reasonable grounds to believe is intended to be used for the purpose of
committing any offence against the person for which a person may be arrested without warrant,
or
(c)
(c1) any offence-related property.
may at any time issue a warrant authorizing a peace officer or a public officer . . . And who is
named in the warrant
•
to search the building, receptacle or place for any such thing and to seize it, and(d)
subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized
before, or make a report in respect thereof to, the justice or some other justice for the same
territorial division in accordance with section 489.1.
(e)
The Information to obtain the Search Warrant
Who is asking
•
Place to be searched
•
Offence committed or suspected
•
Items to be searched for
•
Grounds to Believe that an Offence has been / is being committed
•
Grounds to believe that the Things to be Seized will afford evidence of the offence
•
Grounds to Believe that the Things to be Seized are at the Place to be Searched
•
Informant name and signature etc.
•
EXECUTION OF SEARCH WARRANT
A search warrant for a dwelling will not authorize search of out buildings.
-
If you want to search out buildings, describe and name them specifically and explain why what
you are looking for is likely to be there.
-
Entry must be during daylight hours, unless specifically authorized in the warrant.
-
The Ontario Court of Appeal has ruled that a night search of a residence ought only to occur in
exceptional circumstances other wise it is unreasonable and a Charter breach.
-
Accountability &
Limitation as two
important words!
Plain View Doctrine:
The rule that allows a law
enforcement officer to seize
evidence of a crime, without
obtaining a search warrant,
when that evidence is in plain
sight.
-
PLAIN DOCTRINE MEANS THIS:
chasing a bad guy.. puffing and
huffing, run into house, tackle
guy, under arrest-search the
guy. Under common law
authority of incident to arrest-if
you arrest the guy in his living
room you can search him & the
immediate surroundings. Need
to justify why you are searching
wherever. You see a handgun on
the counter, you have the right
to seize the gun. Even if it is
registered, you can seize it
without a warrant. Anything that
is illegal and you find-you can
seize! Only if it was reasonable
to be found. Ex. warrant to find
a stolen bike-can't reasonably
find gun in counter*
FORM 1
(Section 487)
INFORMATION TO OBTAIN A SEARCH WARRANT
Canada,
Province of Ontario
This is the information of ……………….. of ......................... in the said Province of Ontario,
(occupation), hereinafter called the informant, taken before me.
The informant says that
(describe things to be searched for and offence in respect of which search is to be made),
and that he believes on reasonable grounds that the said things, or some part of them, are in the
(dwelling-house, etc.) of ……….. of ................, in the said Province of Ontario.
(Here add the grounds of belief, whatever they may be.)
Wherefore the informant prays that a search warrant may be granted to search the said
(dwelling-house, etc.) for the said things.
Sworn before me this .......... day of .........., A.D. .........., at ..............
(Signature of Informant)
A Justice of the Peace in and for the Province of Ontario.
Let’s Practice
You must appear before His Worship, Justice of the Peace, Dino Doria.
Every member of your group will contribute to an information to obtain.
Write it out.
Present it to His Worship for his decision to grant a search warrant or not.
This is worth 15% of your final course mark.
W4 Search and Seizure
Thursday,+ February+ 1,+2018 8:03+AM
Search
Looking for things, including the spoken words to be used as evidence of an offence
-
Seizure
The taking of a thing from a person without their consent by a public authority for a lawful
purpose.
-
Introduction
THE PRESUMPTION IS THAT SEARCH REQUIRES A WARRANT
•
A "search" is an invasion of privacy.
-
The Charter protects people not places
-
An invasion of privacy without a warrant is presumed to be an unreasonable search and
therefore a breach of section 8 of the Charter unless we can justify the search using the
exceptions where no warrant is required.
-
THE LEGAL TEST -FOR A REASONABLE SEARCH
A search will be reasonable and therefore valid if that search:
Is authorized by a statute without a warrant and the statute itself is reasonable and the manner
in which the search is carried out is reasonable.
-
A judicial officer has authorized the search in advance after receiving information under oath
(e.g. warrant, general warrant) and the search is carried out in a reasonable manner.
-
There is a clear exception to the requirement of prior judicial authorization and the search is
carried out in a reasonable manner.
-
Unreasonable / Unlawful search and seizure
A search and or seizure that is conducted without lawful authority
Or with malice
Consequences are:
Criminal liability
→
Civil liability
→
Charter remedy
→
Most Common Search Authorities
Search incident to arrest (no warrant)
•
Investigative detention (no warrant)
•
With Consent (no warrant)
•
Warrant
•
Plain view doctrine (with or w/o warrant)
•
Exigent Circumstances
•
Firearms (sec 117.02 & 117.04(2) C.C.)
•
Drugs Sec 11(7) C.C.
•
Incidental to Arrest
Judicial authorization not needed.
-
Evidence relating to any offence
-
Items that could be used to cause injury,
-
Items that could be used to escape
-
Immediate surroundings can be searched
-
Do you need R & PG to search incidental to arrest?
NO! It is common law!
→
Delay between Arrest and Search
Not defined by the Supreme Court
-
Delay may occur
-
You can search more than once
At scene
→
At police car
→
At station
→
-
As with everything, It must be reasonable
-
Must be able to explain the delay
-
What Can Happen if You do NOT Search a Prisoner?
Investigative Detention Reminder . . .
Judicial authorization not required
-
Pat down
-
For weapons only
-
The Crown must establish on the balance of probabilities that
the consent was voluntary, knowing and informed.
-
the giver of consent was aware of the right to refuse consent and the potential consequences of
giving consent
-
Sec 487 et al
Search Warrants
-
Plain View
-
Exigent Circumstances
-
General Warrants
-
Tracking Warrants
-
Video Warrants
-
Covert Entry Warrants
-
Production Orders
-
DNA Warrants
-
Plain View Doctrine
Section 489 CC
•
A police officer may (when lawfully in a place)
Pursuant to a warrant
-
Or other legal purpose
-
Seize anything (without warrant) that on R & PG she believes:
Has been obtained
→
Has been used
→
Will afford evidence of an offence against the Criminal Code or any act of Parliament
→
-
Exigent Circumstances
487.11 A peace officer . . . may, [search] without a warrant if the conditions for obtaining a
warrant exist but by reason of exigent circumstances it would be impracticable to obtain a
warrant.
Accused arrested outside his house, 14 feet from the door for firearm offences
→
Police believed a firearm was in the house
→
Suspected someone else might be in the house
→
Search conducted without warrant for safety
→
Supported by courts
→
Exceptional circumstances –defined as when law enforcement interest are so compelling
that they override the charter protection to privacy within a home -
→
•
Involves great urgency with a clear need to protect persons or property from imminent serious
harm where there isn't time to obtain a warrant
-
You must articulate the reason for your action and demonstrate you had reasonable and
probable grounds.
-
The more serious the potential consequences of a situation, the more the court will tolerate an
action that may violate certain provisions of the charter.
-
A Search Warrant
487. (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable
grounds to believe that there is in a building, receptacle or place
•
anything on or in respect of which any offence against this Act or any other Act of Parliament
has been or is suspected to have been committed,
(a)
anything that there are reasonable grounds to believe will afford evidence with respect to the
commission of an offence, or will reveal the whereabouts of a person who is believed to have
committed an offence, against this Act or any other Act of Parliament,
(b)
anything that there are reasonable grounds to believe is intended to be used for the purpose of
committing any offence against the person for which a person may be arrested without warrant,
or
(c)
(c1) any offence-related property.
may at any time issue a warrant authorizing a peace officer or a public officer . . . And who is
named in the warrant
•
to search the building, receptacle or place for any such thing and to seize it, and(d)
subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized
before, or make a report in respect thereof to, the justice or some other justice for the same
territorial division in accordance with section 489.1.
(e)
The Information to obtain the Search Warrant
Who is asking
•
Place to be searched
•
Offence committed or suspected
•
Items to be searched for
•
Grounds to Believe that an Offence has been / is being committed
•
Grounds to believe that the Things to be Seized will afford evidence of the offence
•
Grounds to Believe that the Things to be Seized are at the Place to be Searched
•
Informant name and signature etc.
•
EXECUTION OF SEARCH WARRANT
A search warrant for a dwelling will not authorize search of out buildings.
-
If you want to search out buildings, describe and name them specifically and explain why what
you are looking for is likely to be there.
-
Entry must be during daylight hours, unless specifically authorized in the warrant.
-
The Ontario Court of Appeal has ruled that a night search of a residence ought only to occur in
exceptional circumstances other wise it is unreasonable and a Charter breach.
-
Accountability &
Limitation as two
important words!
Plain View Doctrine:
The rule that allows a law
enforcement officer to seize
evidence of a crime, without
obtaining a search warrant,
when that evidence is in plain
sight.
-
PLAIN DOCTRINE MEANS THIS:
chasing a bad guy.. puffing and
huffing, run into house, tackle
guy, under arrest-search the
guy. Under common law
authority of incident to arrest-if
you arrest the guy in his living
room you can search him & the
immediate surroundings. Need
to justify why you are searching
wherever. You see a handgun on
the counter, you have the right
to seize the gun. Even if it is
registered, you can seize it
without a warrant. Anything that
is illegal and you find-you can
seize! Only if it was reasonable
to be found. Ex. warrant to find
a stolen bike-can't reasonably
find gun in counter*
FORM 1
(Section 487)
INFORMATION TO OBTAIN A SEARCH WARRANT
Canada,
Province of Ontario
This is the information of ……………….. of ......................... in the said Province of Ontario,
(occupation), hereinafter called the informant, taken before me.
The informant says that
(describe things to be searched for and offence in respect of which search is to be made),
and that he believes on reasonable grounds that the said things, or some part of them, are in the
(dwelling-house, etc.) of ……….. of ................, in the said Province of Ontario.
(Here add the grounds of belief, whatever they may be.)
Wherefore the informant prays that a search warrant may be granted to search the said
(dwelling-house, etc.) for the said things.
Sworn before me this .......... day of .........., A.D. .........., at ..............
(Signature of Informant)
A Justice of the Peace in and for the Province of Ontario.
Let’s Practice
You must appear before His Worship, Justice of the Peace, Dino Doria.
Every member of your group will contribute to an information to obtain.
Write it out.
Present it to His Worship for his decision to grant a search warrant or not.
This is worth 15% of your final course mark.
W4 Search and Seizure
Thursday,+ February+ 1,+2018 8:03+AM
Document Summary
Looking for things, including the spoken words to be used as evidence of an offence. The taking of a thing from a person without their consent by a public authority for a law purpose. The presumption is that search requires a warrant. An invasion of privacy without a warrant is presumed to be an unreasonable search and therefore a breach of section 8 of the charter unless we can justify the search using the exceptions where no warrant is required. The legal test - for a reasonable search. A search will be reasonable and therefore valid if that search: Is authorized by a statute without a warrant and the statute itself is reasonable and the in which the search is carried out is reasonable. A judicial officer has authorized the search in advance after receiving information unde (e. g. warrant, general warrant) and the search is carried out in a reasonable manner.
