Fouille accessoire à une arrestation

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General Principles

See also Warrantless Arrests for details on arrest powers

Common Law Rule for Search

The common law creates an exception to the rule that a warrantless search is prima facie unreasonable when the search is incidental to arrest (SITA). This exception is limited by courts to protect the individual's privacy rights.

An officer undertaking a search incident to arrest does not need to have reasonable and probable grounds. It is only necessary that the officer has "some reasonable basis" or "reasonable prospect" to believe that evidence supporting the offence will be found.

The accused generally cannot claim an expectation of privacy with respect to his personal belongings inspected once they are lawfully seized incident to arrest.

There is no "blanket authority" to search a car incident to arrest.

Authority Arises from Arrest Power

The power does not arise from a reduced expectation of privacy of the arrested person. Rather it comes from "the need for the authorities to gain control of the situation and the need to obtain information."

The lawfulness of a search incident to arrest flows from the lawfulness of the arrest itself and so does not require independent reasonable grounds.

This common law power is an exception to the usual requirement of "reasonable grounds" for a search. The Officer must subjectively believe that person is committing or has committed an indictable offence and their belief is based on objectively reasonable grounds.

It is said that "[i]f the arrest is unlawful, the search is also unlawful”.

Valid Objective

The common law power is discretionary to the officer based on whether the law can be applied safely and effectively without a search.

The search must be for a valid objective in the administration of justice, such as the discovery of things that may be a threat to the safety of the officer, accused, or public, items that may facilitate escape, or items that may be evidence to the offence for which he was arrested.

The "primary" purposes of search incident to arrest are:

1. to ensure the safety of the police and the public;
2. to protect evidence;
3. to discover evidence

There is an open list of legitimate purposes. However, a valid purpose must be "truly incidental" to the arrest.

Where the purpose is to discover evidence, there must be "a reasonable prospect the evidence will relate to the offence for which the person is arrested."

The police conducting the search "subjectively must have a valid purpose in mind, the reasonableness of which must be considered objectively."

The decision to search must be "reasonably necessary in light of the totality of the circumstances." It cannot be on vague concerns for safety.

The search should not be used "to intimidate, ridicule or pressure the accused in order to obtain admissions." It should not "be conducted in an abusive fashion and, in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation."

Assessment of Valid Searches

The assessment of a search must consider:

1. the purpose of the search;
2. whether that purpose was a valid law enforcement purpose that was connected to the arrest; and
3. whether the purpose identified for the search was objectively reasonable in the circumstances.

Seizure of Evidence upon Discovery

A peace officer may also take property from a person which the officer reasonably believes is connected with the offence charged, or which may be used as evidence against the person arrested. This power is derived from the common law.

The police are obliged to safeguard items they have seized.

Level of Interference

Searches that have greater impact to "human dignity, serious interference with bodily integrity and significant invasions of privacy require a higher degree justification for the search and seizure."

The use of "physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation."

Timing of Search

The timing of the search does not need to be immediately after the arrest is affected, it should be done "within a reasonable period of time after the arrest." A "substantial delay" will permit the making of an inference that the search was not sufficiently connected to the arrest.

Depending on the circumstances, hours may pass and the search may still be lawful.

Just because there is time to obtain a warrant is not determinative of whether a warrant is needed.

Person Arrested

Searches conducted in the normal practice of creating an inventory of items on a person who is being lodged in cells for an offence is a permissible search.

Searches that intrude on "bodily integrity or human dignity" will be subject to a higher standard for warrantless search.

U.S. case law has developed doctrine that will often permit search of containers in possession or control of the person.

Strip Searches

A strip search refers to "the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely, genitals, buttocks, breasts (in the case of a female), or undergarments."

They are considered highly intrusive because:

• They represent a significant invasion of privacy;
• They are often a humiliating, degrading and traumatic experience; and
• Even the most sensitively conducted strip search is highly intrusive.

Given the serious "infringement of privacy and personal dignity" of a strip search, it will only be valid at common law where it is "conducted as an incident to a lawful arrest for the purpose of discovering weapons in the detainee's possession or evidence related to the reason for the arrest."

The purpose relating the search for evidence is "governed by the need to preserve the evidence and to prevent its disposal by the arrestee."

Necessary Grounds

It is not sufficient to establish reasonable and probable grounds for arrest. A strip search on an individual can only be performed where there is additional reasonable and probable grounds to do so or there are exigent circumstances.

Burden or Onus

The onus is upon the Crown to establish the sufficiency of grounds to conduct the strip search.

It Should Not be Routine

Given the level of intrusion, strip searches should not be carried out "routinely or under policy." There should be a "compelling reason" to undertake one.

Manner of Search

The strip search must be conducted in a reasonable manner. It cannot be done "abusively or for the purpose of humiliating or punishing the arrestee." However, no matter what the search will be "humiliating and degrading."

Guidelines suggest that the following questions should be considered before undertaking a strip search:

1. Can the strip search be conducted at the police station and if not, why not?
2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
6. What is the minimum of force necessary to conduct the strip search?
7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?
9. Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact?
10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?
11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

Usually Takes Place at Station

It is rarely justified that a strip search should occur outside of the police station. It will usually only be under exigent circumstances that it will take place at the location of arrest.They represent an even greater intrusion upon the privacy and bodily integrity of the accused.

Where a search is conducted outside of the station, the Crown will have the additional burden of establishing that there was "reasonable and probable grounds to believe that it [was] necessary to conduct the search in the field rather than at the police station."

There must be a "demonstrated necessity and urgency to search for weapons or objects that could be used to threaten the safety of the accused, the arresting officers or other individuals" and that it would be "unsafe to wait and conduct the strip search at the police station."

The risk of disposal of drugs found on the person is not justified where the accused is detained and transported in a police cruiser to the station where continuity will be maintained.

Deviation from Guidelines

The established guidelines can be deviated from where there are "exigent circumstances" that do not permit less intrusive procedures.

Mere non-cooperation or resistance is not enough to make out exigent circumstances.

Taking Bodily Samples

The higher standard used in strip searches will equally apply to the taking of hair samples and cheek swabs.

Penile Swabs

There is a divide on whether a penile swab is ever available without a warrant.

In Alberta, a warrantless search by way of a penile swab requires exigent circumstances. It has been suggested the circumstances that will permit such a search "will rarely arise."

A penile swab is considered more intrusive than a strip search. It is closer to taking a bodily sample of a suspect.

The "non-consensual interferences with the body are experienced as a violation of human dignity."

Evidence establishing that the time necessary to apply for a warrant would result in evidence significantly deteriorating or disappearing that award will be required.

Residences

The power to search a person on arrest will generally extend to the search of the premises wherein he was found, which was under his control.

Section 529.3 authorizes warrantless entry into a residence.

A warrantless arrest of an individual at their front door may, in certain circumstances, permit the officers to perform a sweep of the residence for the presence of other people and to preserve evidence.

Motor Vehicles

The common law power of police to search incident to arrest can include the accused's motor vehicle. An officer may search a vehicle incidental to arrest where it is for a valid purpose related to the offence and where the officer reasonably believed that the search would be only to achieved that legitimate purpose. There is no heightened expectation of privacy justifying an exemption from the usual common law principles of search incident to arrest. For example, a search of a briefcase found in a stolen vehicle incident to arrest is justified. The presumption of unreasonableness of a warrantless search is rebutted upon proof that the arrest was lawful and the search was reasonable.

Where the two accused are arrested in a vehicle for breaching no contact conditions, that alone is not sufficient for the officer to have reasonable and probable grounds to search the vehicle incident to arrest.

The removal of panels from the vehicle may, in limited cases, be justified as a search incident to arrest.

A search of a motor vehicle in relation to an investigation for breach of recognizance may generally not be valid.

Vehicle Search Incident to Arrest Warrant

A search of a vehicle incident to the execution of an arrest warrant, as opposed to a search pursuant to an investigation, will usually not be permissible and would violate s. 8 of the Charter.

Vehicle Seizure

Where the police seize a vehicle for the purpose of removing it from the road, there is a lessened expectation of privacy. Thus, any contents of the vehicle in plain view upon entering the vehicle can be seized.

Requesting Driver's Licence

A request by a police officer for a driver's licence and insurance is not a search.

Inventory Searches

When a vehicle is impounded lawfully, the officers have a duty to keep the property safe and take reasonable steps to do so. This will require entering the vehicle to itemize the property of apparent value.

An inventory search "per se" does not amount to a "valid objective" in criminal law that can produce evidence that is admissible at a criminal trial.

However, provincial motor vehicle legislation may permit inventory searches under the authority to impound a vehicle. This authority extends to permit police to look inside bags.

Passengers of Vehicles

A passenger in a motor vehicle generally does not have a reasonable expectation of privacy. However, there is an expectation of privacy in the limited area underneath the passenger.

Trunks and Bags

An officer performing a vehicle stop and begins an impaired driving investigation may use the observations of the driver's impairment to search trunk and bags found within the car for the purpose of "locat[ing] evidence helpful to the impaired driving offence."

In certain circumstances, police may search a vehicle to determine whether there are weapons found in the vehicle.

Computers, Cell Phones and Digital Storage

See also Reasonable Expectation of Privacy#Computers and Electronic Devices

A warrantless search of a cell phone incident to arrest is permitted where:

1. The arrest was lawful;
2. The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:
   1. Protecting the police, the accused, or the public;
   2. Preserving evidence; or
   3. Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;
3. The nature and the extent of the search are tailored to the purpose of the search; and
4. The police take detailed notes of what they have examined on the device and how it was searched.

The search not permitted when it is in relation to a "minor offence."

Truly Incidental

The requirement that the purpose be "truly incidental" asks for a strict interpretation of the purpose of the search. The search must be articulated as connecting the "particular arrest for the particular offence". It cannot be generalized.

Timing of Search

Searches should be done "promptly upon making an arrest."

Discovery of Evidence

The "valid reasons" relating to the discovery of evidence should "not routinely permitted simply for the purpose of discovering additional evidence." It must serve an "immediate investigative purpose." The officer must be able to explain "why it was not practical..., in all the circumstances of the investigation, to postpone the search until they could obtain a warrant."

Detailed Notes

The requirement for detailed notes will vary on the type of device examined. A device such as a USB key that contains a "narrower" range of information will impose less obligation on the officer.

Examples

Storage Devices

A search memory stick without a warrant upon arrest for credit card fraud has been found to violate s. 8.

Seizure Incident to Arrest

• See Seizure of Property

See Also

• Reasonable and Probable Grounds
• Manner of Search