Warrantless Search Lawyer Ottawa • Warrantless Search Lawyer Toronto

What are Warrantless Searches?

Because there's no prior judicial authorization, warrantless searches must rely on legislation or the common law for a valid search power. If your factual situation doesn't neatly fit the legal requirements for a warrantless search, the evidence seized without a warrant might get thrown out of court. 

Warrantless searches have a potential for much greater abuses than searches with a warrant because there is no supervising court weeding out unlawful actions in advance of search execution. Rather than judicial prior-approval, warrantless searches undergo post-search court approval (or disapproval) during a trial when the validity of a search is challenged. 

Why Challenge Warrantless Searches? 

Often the only evidence against an accused may have come from a warrantless search, like the finding of a small amount of drugs in a pant pocket of clothing being worn at the time of an arrest or in a glove compartment of a vehicle being driven at the time of its impoundment by police. Excluding that evidence as having been illegally obtained will often put a complete end to the prosecution's case.

How to Challenge Warrantless Searches: The 5 Categories of Police Action

There are primarily five categories of warrantless search (one being really more a seizure than a search category). If police actions didn't clearly fall within the boundaries of one of these categories, your lawyer can ask a judge to throw out the evidence obtained from the unlawful search. 

The key control on warrantless searches and seizures under Canadian law is the s. 8 Canadian Charter of Rights and Freedoms constitutional guarantee of protection against unreasonable search and seizure. Fights in court revolve around what amounts to “unreasonable.”

1. Search incident to arrest of person may be unlawfully intrusive

When a person is arrested the police are in theory able to search his or her person and belongings. But if the arrest was unlawful, then so was the search incident to arrest. And even if the arrest was lawful, the scope of the search incident to arrest might have been unlawful. Examples of potentially overly broad scope searches that can be challenged at trial include:

  • a strip search, which will need much greater justification than a pat down search;

  • a body cavity search, which will need an even greater level of justification;

  • while clothing and items carried by the person arrested can usually be searched without warrant incident to arrest, a vehicle or residence/office usually cannot be searched without separate judicial authority.

2. Search incident to arrest of vehicle may be unlawfully broad

While a warrantless "inventory search" might be conducted of a vehicle seized as a consequence of an arrest, generally the vehicle can only be searched for items consistent with the offence being arrested for. So an impaired driving arrest could lead to a search for alcohol, but not a search for firearms.

3. Consent search of person, vehicle or residence may be unlawfully uninformed

"Consent" searches deserve the highest degree of scrutiny at trial of any kind of search. Some police services will even produce written consent search forms for targeted persons to sign, but in order for any consent to waiving constitutionally protected rights to privacy to be valid that consent must have been informed, which would usually require speaking with a lawyer for advice.

Courts have come to inconsistent results over the legality of questions like "do you mind if I take a quick look in your trunk," leading to the discovery of evidence of significant criminal offences. Consent searches are usually worth challenging if they lead to charges. 

4. Plain view is only a seizure authority, not a search authority

It's quite true that police have the power to seize without warrant when they see something that is clearly evidence of a crime, however there are two important pre-conditions to a lawful plain view seizure:

  • police must already be lawfully in the location where the seizure takes place;

  • the evidence of criminality must be clear, so that the item to be seized could not be innocent, and the presence of the item is so clear that no "searching" is required to reveal it.

5. Exigent circumstances searches may unlawfully be based on circumstances that are not so exigent

The prosecution will sometimes concede that a warrant was needed to conduct a search of a residence or vehicle, but that because of the urgency of the situation the police simply didn't have time to obtain one. However, there are really very few circumstances that can truly qualify as so exigent that they completely excuse the need for a warrant. Among the quick legal search authorization techniques available to the police are:

  • telewarrants - the police can usually have easy access to a search warrant obtained by telephone;

  • freeze searches - where there is a high risk of evidence being destroyed or moved while a warrant is being obtained, the police can seize and control a location or vehicle for a reasonable period of time while a warrant is being obtained, so long as no searching is conducted prior to arrival of the warrant.

A burning building or sinking ship might justify true exigent circumstance searching, but not much else. 

When to Challenge Warrantless Searches Or Detentions of Goods

Although warrantless searches are most commonly challenged at trial, an application can be brought before a competent court at any time for return of goods illegally seized or illegally detained even if the initial seizure was lawful.

Anytime something is seized, the seizing officers must make a "return to a justice" filed with a court explaining what was seized, and why they need to detain it. If charges connected to the things seized aren't laid within a reasonable time, the officers might need to apply for an extension to the initial period of detention. It's possible to challenge the continued detention, as well as whether any detention was justifiable in the first place. 

Why Retain Our Firm to Challenge Your Warrantless Search & Seizure?

The firms’ Managing Lawyer Gordon S. Campbell served as the Criminal Constitutional Issues Coordinator for the Ontario Regional Office of the Department of Justice Canada, where he annually supervised hundreds of constitutional challenges to searches and seizures. He has published three books on warrantless search and seizure. If there is a viable angle of attack to your warrantless search and seizure, the firm will find it for you.