Tips For When You’re In Police Custody—Arrested & ChargedAugust 27, 2016
Glossary: Criminal Law TermsNovember 30, 2016
Warrantless Search of Motor Vehicles
Sources of Lawful Authority that Permit Police To Search Automobiles Without a Warrant
Warrantless searches of motor vehicles
The Supreme Court of Court has previously decided that motor vehicles, though emphatically not Charter-free zones, are places in which individuals have a reasonable but “reduced” expectation of privacy.
The basics of warrantless searches of motor vehicles
There are situations in which the public’s interest in law enforcement is greater than an individual’s right to privacy, particularly while driving on public roads. So, there are certain laws in Canada that govern when and in which situations police can search your motor vehicle. That being said, if and when the police overstep their authority and search your vehicle without a warrant AND without lawful authority to justify the search, our courts provide appropriate remedies through the Charter–evidence seized may not be used against you in court or the charges will be stayed.
There are many situations in which individuals are wondering whether a police officer must have and show a search warrant to search a motor vehicle. Even though section 8 of the Canadian Charter of Right and Freedoms, states that “Everyone has the right to be secure against unreasonable search or seizure”, there are certain exceptions.
Sources of Lawful Authority
Police can conduct warrantless searches of motor vehicles under the following sources of lawful authority:
Search of Motor Vehicle Incidental to Arrest
The common law authority to search incidental to a lawful arrest provides authority for the search of a motor vehicle incidental to an arrest. If the search of a motor vehicle is not authorized by the common law power of search incidental to arrest, a warrant must be obtained to authorize the search in the absence of exigent circumstances
Search incidental to arrest is authorized by the common law only
-if the arrest is lawful,
-the search is conducted as an “incident” of the arrest, and
-the manner in which the search is carried out is reasonable.
The search must be for a purpose related to the arrest. Officers must justify conducting this type of search for one of the following purposes
(1) ensuring the safety of the police and public;
(2) protecting evidence from destruction at the hands of the arrestee or others; and
(3) discovering evidence that can be used at the arrestee’s trial
Inventory Checks of Impounded Vehicles
Under section 221 of the Highway Traffic Act (HTA), when the police seize and impound your vehicle, they are allowed to lawfully enter your vehicle to conduct an “inventory check” and note any visible content due to the fact that the police are taking lawful custody and possession of the vehicle, for the purpose of removing it from the road and keeping it in their possession.
Inventory checks are commonly abused and mistaken as a blanket search for officers to look through the entire contents and components of the vehicle—which is improper and unlawful and often remedied with the exclusion of evidence or a judicial stay of proceedings.
The HTA allows law enforcement officers to perform warrantless searches of a motor vehicles, such as searching for car or driving documentation in reasonable areas where it is expected to be, for the purposes of identification.
Being stopped initially for a legitimate reason under the HTA does not bar the police from conducting concurrent or dual purpose criminal investigation at the same time—in fact, this is quite often the very exact justification used by police to stop a motor vehicle initially and the pursue conducting a criminal investigation.
Section 82 of the HTA also grants police with the power to stop vehicles for the purpose of inspecting the fitness of unsafe motor vehicles.
Finally, there is nothing unlawful about an officer looking through your car windows to observe the interior of the vehicle—remember the expectation of privacy is reduced when in a motor vehicle.
Officer Safety Search Power
Under the ancillary powers doctrine, the common law can provide lawful authority for a police “safety search” where the police officer:
(a) is acting within the scope of the duty to protect life and safety;
(b) has reasonable grounds to believe that there is an imminent threat to the safety of the public or the police; and
(c) the search, reasonably and objectively considered, was necessary to address/eliminate the threat.
Sniffer Dog Search Power
The use of a narcotic dog (a dog trained to detect illegal drugs using its sense of smell) is a search that does NOT require prior judicial authorization. However, in order for a sniff search to be compliant with the Charter, it must meet the criteria for unauthorized searches.
The decision to deploy a sniffer dog meets a test where the police have a reasonable suspicion based on objective, ascertainable facts that evidence of an offence will be discovered, and the search must also be conducted in a reasonable manner (dog is properly trained and handled).
Searches under CDSA
Controlled Drugs and Substances Act is another law that covers warrantless searches of motor vehicles. According to the CDSA, any peace officer can conduct a warrantless search when specific circumstances exist.
They can do this when they have reasonable grounds to believe that the vehicle contains controlled drugs and substances and it is not practical to wait for a warrant because the evidence cannot be preserved. These exigent circumstances mentioned in the Controlled Drugs and Substances Act include the impending danger of the removal, loss, destruction or disappearance of the substances.
Searches under LLA
Section 32(5) of the Liquor License Act provide the police with the lawful authority to a search a motor vehicle without a warrant, based on reasonable grounds to believe alcohol is being unlawfully kept in the vehicle. The exception to this rule is, if the liquor in the vehicle is in a container that is unopened or the seal is unbroken, or is not readily available to occupants of the vehicle
Note to readers: This article is solely for informational purposes and should not be considered legal advice. In order to ensure the protection of your rights and interests, please consult a criminal defence lawyer prior to acting or relying upon any information.
CONTACT FARJOUD LAW
If you or someone you care about has had property seized by the police in relation to a criminal investigation or charge, it is in your best interests to speak directly to a Toronto criminal lawyer. Call Farjoud Law at (647) 606-6776 to speak with a criminal lawyer to discuss your matter. We are available 24 hours a day, 7 days a week.
Farjoud Law is located at 4950 Yonge Street, Suite 2200 in the neighbourhood of North York in Toronto, Ontario. Click here for directions to the office