Evidence and Investigation: Search & Seizure PDF

Evidence and Investigation: From the Crime Scene to the Courtroom, 2e CHAPTER 2 Searching for and Securing Evidence: Legal Considerations Week 3  Learning Outcomes 2 After completing this chapter, you should be able to:  Defin...

Evidence and Investigation: From the Crime Scene to the Courtroom, 2e CHAPTER 2 Searching for and Securing Evidence: Legal Considerations Week 3  Learning Outcomes 2 After completing this chapter, you should be able to:  Define the legal terms search and seizure.  Identify the Charter provisions that apply to search and seizure.  Explain the concept of a reasonable expectation of privacy, and describe how a person’s expectation of privacy affects police search and seizure practices.  Describe the three areas in which a person has an expectation of privacy. Learning Outcomes 3 (cont’d) All rights reserved. Copyright © 2019 Emond Montgomery Publications.  Explain the general rule in Canada regarding warrantless searches and seizures, and explain when police can search and seize without a warrant.  Describe the process for obtaining judicial authorization to search and seize.  Discuss the different types of judicial authorizations available to investigators.  Describe the potential legal consequences where a court finds that a particular search or seizure was unreasonable.  4  https://www.cbc.ca/news/canada/hamilton/hamilton-police -no-knock-raid-charter-violation-1.7104604  Copy and Paste into Browser  The Sanctity of Private Property 5 "The house of everyone is to him as his castle and fortress, as well for his defense against injury and violence as for his repose.” (Semayne’s Case – 1604) Semayne v. Gresham, 5 Co. Rep 91a, 93a, 77 Eng. Rep. 194, 198 (K.B. 1604)  A search warrant must be obtained whenever it is practicable to do so, or the search will be held to be prima facie unreasonable  Introduction 6 Search  Any non-consensual examination by the state of something in which one has a reasonable expectation of privacy Seizure  Any taking of something belonging to or in the care and control of a person by the state Privacy  The condition of being free from the unsanctioned intrusion of others Investigative rights to search and seize must be balanced against the right of individuals to their privacy.  General Rule 7 Governing Searches  Section 8 of the Charter: “everyone has the right to be secure against unreasonable search or seizure”  Requires judicial pre-authorization, usually in the form of a warrant  An officer who has a reasonable opportunity to obtain judicial authorization before conducting a search and seizure must do so  Failure to obtain the required authorization may result in evidence being inadmissible (Charter, s. 24(2))  Requirements of a Reasonable Search 8  A reasonable search is one that is authorized by statute; is reasonable and is carried out in a reasonable manner, or  judicially pre-authorized by a justice of the peace or judge, or  is covered by one of the warrantless search exceptions  A search begins when a police officer enters upon the premises to be searched  The entire search may be compromised if the initial entry is not carried out in a reasonable manner  Guiding Principle: A 9 Reasonable Expectation of Privacy For Charter protections to apply if a warrant is not obtained, an individual must demonstrate that he or she had a reasonable expectation of privacy.  Courts have said that “the reasonable expectation of privacy … is context-driven” (R v Marakah, 2017, para 115) The Supreme Court has held that a person can have a privacy interest in three key areas: territorial (a person’s place or things), informational (knowledge or facts about the person), and personal (a person’s body) (R v Dyment, 1988).  A Reasonable Expectation 10 of Privacy (cont.) Territorial Privacy  Can be considered as a hierarchy, where a person has the greatest right to privacy over their “dwelling-house” followed by other private spaces, such as their vehicle Informational Privacy  Protects “a biographical core of personal information” (R v Plant, 1993, p. 293) that individuals in a free and democratic society would want to keep private from the state  Personal Privacy 11 The taking of bodily substances, bodily impressions, fingerprints, and photographs. Searches of the Person A search incident to arrest is permitted without a warrant as long as  the arrest is lawful  the search is conducted incidental to arrest  the search is conducted in a reasonable manner  Personal Privacy 12 (cont.) Bodily Substances  E.g., hair, blood, buccal swabs  May be taken only where prior judicial authorization has been obtained Bodily Impressions  E.g., handprint, fingerprint, footprint, foot impression, teeth impressions  May be obtained only with judicial authorization (Criminal Code s. 487.092) Fingerprints and Photographs  Identification of Criminals Act authorizes police to fingerprint or photograph any person (charged with an indictable offence) in lawful custody (subject to conditions)  Do I Need A Search Warrant? 13  S – Statute  E – Exigent circumstances  P – Plain view seizure  I – Incident to arrest  C – Consent  O – Officer Safety  Unless your search fits into one of these exceptions, you do require a search warrant Exceptions to the General Rule 14 of Judicial Pre-Authorization Incident to Arrest and Investigative Detention  Officer may search a person and the immediate vicinity around the person incident to arrest  Police may search the person and immediate vicinity where they have reasonable grounds to suspect a person is connected to a particular crime and believe it is necessary to detain the person (investigative detention)  Exceptions to the 15 General Rule of Judicial Pre-Authorization (Cont.) Consent and Abandonment  An officer has the authority to conduct a warrantless search where the person gives them consent (must be voluntary and informed)  Warrantless searches of abandoned property are permitted (must consider both location and intent) Plain View  Legal principle stating that when a police officer is lawfully situated and evidence of a crime comes into “plain view,” such evidence may be lawfully seized without a warrant; known as the plain view doctrine  Exceptions to the General 16 Rule of Judicial Pre- Authorization (Cont.) Exigent Circumstances  Circumstances in which at the time of the search police are required to take immediate action to ensure their safety or the safety of others, or to secure and preserve evidence (example: 911 call)  Only applicable in extraordinary situations Statute  In additions to provisions of the Criminal Code and Controlled Drugs and Substances Act, some other statutes give officers authority to conduct warrantless searches in specific circumstances  Obtaining 17  Authorization Most common judicial authorization to search and seize is conventional search warrant known as a section 487 warrant  An information to obtain (ITO) must be prepared  Must provide information that there are reasonable grounds to believe search will yield evidence of a criminal offence  ITO must:  be clearly written and free of errors  be a full, frank, and fair account of what the informant knows about the investigation  provide the justice with the source of the information on which the informant is basing his or her belief  Informant must observe the rule against narrative  Common Types of 18 Authorizations  Common warrant to search and seize  General warrant  Warrant to enter a dwelling house  Warrant to obtain bodily impressions  Warrant to obtain blood samples  Warrant to obtain bodily substances for forensic DNA analysis  Warrant to search, seize, and detain proceeds of crime  Warrant to search and seize  Authorization to intercept private communications  Common Types of 19 Authorizations (Cont.)  Preservation demand and preservation order  General production order  Production order to trace specified communication  Production order—transmission data  Production order—tracking data  Production order—financial data  Tracking warrant  Transmission data recorder warrant  Telewarrant  Warrantless Entry 20 Exigent Circumstances  Reasonable grounds (R.G.) for a warrant must exist  R.G. that imminent death or bodily harm may result, or  R.G. of imminent loss, destruction or removal of evidence  Impracticable to obtain a warrant  See Section 487.11 Criminal Code and subsection  Sec. 487 CC Search Warrants 21  Form 5 Criminal Code  Used for buildings, receptacles or places to enter and search for tangible evidence of crimes  When an offence:  Has been committed  Is suspected to have been committed  To seize things intended to be used to commit an offence against the person for which the suspect could be arrested without warrant  Sec. 487 CC 22 Search Warrants  Made out to a specific “named” officer who does not have to be present during search  All officers involved in search do not need to be named on the warrant  Authorized for execution by day only unless otherwise specified  Information to Obtain -23 (ITO)  Form 1 Criminal Code  Identifies person applying for the search warrant  Identifies the building, receptacle or place to be searched  Identifies the things to be searched for  Specifies the informant’s reasonable grounds for believing that evidence of an actual, suspected or intended crime will be found in the building, receptacle or place  Building 24 Receptacle or Place  Identify buildings by exact legal address or location  Does not include a human body, street or other public place  Receptacle includes storage lockers, packages, suitcases, etc  “Place” can include a motor vehicle, boat or aircraft  Description of Things 25 to be Seized  Must be described in as much detail as possible  Make  Model  Size  colour  Serial number, etc.  Alternatively, describe things by class characteristics  Describe every possible item that can be searched for on the basis of reasonable probability  Reasonable Grounds 26 for Belief  All investigative grounds should be attributed to its source  Hearsay evidence that can be corroborated or shown to be reliable may be included  All evidence for or against the granting of the warrant must be included  Justice is not allowed to cross-examine or question the informant on anything that is not stated in the grounds for belief  Telewarrants 27 S. 487.1 CC  Obtainable after-hours and on weekends  Information deemed to be under oath submitted by telephone or other means of telecommunication  Information must specify reasons why the informant can not appear personally before the issuing justice  Copy of telewarrant must be served upon person in control of premises or affixed in a conspicuous place if premises unoccupied at time of search Rules and Restrictions Imposed 28 by Judicial Authorization All rights reserved. Copyright © 2019 Emond Montgomery Publications. Authorized searches must satisfy strict conditions:  Warrant may specify date or dates during which search can be conducted  Warrant typically authorizes only one opportunity to enter and search property described  If police leave property before completing search, the authority to search ends  Search at a dwelling house normally requires knock and announce procedure  If anything is seized during the search, officers are required to file a report to a justice  Return to Justice 29 s. 489.1(1) and 490 CCbe made to report  Return to a justice must seizures:  Made by warrant  Incident to arrest  Exigent circumstances  Form 5.2 Criminal Code  Valid for three months from date of original seizure  May be extended for three month periods unless proceedings are commenced in which the thing is required as evidence  Search Warrant -30 Deficiencies (Why they  Fail) Serious and obvious defects on face of warrant  Incorrect address  Failure to specify things to be searched for  Omitting times of search  Insufficient or false grounds  Wilful non-disclosure  Failure to have warrant present  Execution other than by day  Unjustified use of force  Omitting to give prior announcement  Unjustified seizure of evidence  Search Warrant Execution 31  Search warrant does not authorize the search of persons found inside buildings  Civilians with special skills required to execute the warrant should be named on the warrant  Must announce entry unless there is imminent danger to any person or danger of loss or destruction of evidence (“knock and announce”)  Seizure of things not named in the warrant is permitted under subsection 489(2) CC  General Warrants 32  Authorize investigative techniques, procedures, use of devices or anything in relation to a person or their property, which if it not authorized, would result in a Section 8 Charter of Rights violation  Issued by a provincial court judge or a judge of a superior court of criminal jurisdiction  Does not permit interference with bodily integrity of any person Remedies for Unreasonable 33 Searches and Seizures Under section 24 of the Charter, any person whose rights have been infringed may apply to the court to obtain a legal remedy. If the court finds applicant’s rights were infringed, it may decide to exclude the evidence. Court will consider:  The seriousness of the Charter-infringing state conduct  The impact of the breach on the Charter-protected interests of the accused  Society’s interest in the adjudication of the case on its merits