Search Warrants: Answers to FAQ on Police Raids & Search Warrants
WHAT ARE THEY & WHEN ARE THEY REQUIRED?
ANSWERS TO FAQ ON PRIOR JUDICIAL AUTHORIZATION
WHAT IS A SEARCH WARRANT?
A search warrant (also referred to as prior judicial authorization) is a court order issued by a Justice of the Peace (JP) or a Judge that allows police officers to enter a specific location to conduct a search of a person, place or thing, for evidence that is material or relevant to the criminal offence(s) set out in the warrant.
WHAT IS A GENERAL WARRANT?
A general warrant under section 487 of the Criminal Code allows a judge to issue a warrant in writing authorizing a peace officer to use any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure. General warrant cannot be used to seize anything on a person, but instead is to be used to seize tangible things or to conduct covert searches.
WHAT IS A TELE-WARRANT?
Pursuant to section 487.1 of the Criminal Code, a tele-warrant is a warrant that is requested by telephone or other means of telecommunication. All the requirements of a regular search warrant still apply, except for the fact that the police officer is not required to attend in person before a judge to obtain authorization.
This process is intended to provide immediate access to a judicially authorized warrants in exigent circumstances. Officers provide all the information to the judge by telephone or facsimile, and the judge issues the warrant orally or by facsimile to the officer.
Reasons for applying for tele-warrant: 1) distance to reach judge 2) outside court hours 3) short time limit to obtain the warrant
WHAT DOES A SEARCH WARRANT LOOK LIKE?
A search warrant should look something like this:
WHAT IS AN INFORMATION TO OBTAIN (ITO)?
An Information to Obtain (ITO) is a document prepared by the police in support of obtaining permission from a judge to grant authorization to lawfully search of a particular person, place or thing. The officer will include in the ITO evidence that will be suffcient to demonstrate that reasonable and probable grounds exist to believe that a criminal offence has been committed and that a search of the location specified in the ITO will afford evidence.
DO POLICE HAVE TO SHOW YOU A COPY OF THE WARRANT?
Yes, they have to show you the search warrant ONLY if they have a copy of the warrant with them AND you have asked to see it. If you don’t ask, they are under no obligation to produce the warrant.
ARE THERE LIMITS ON THE TIME OF DAY A SEARCH CAN BE EXECUTED?
Search warrants must be executed by day unless otherwise specifically ordered pursuant to section 488 of the Code. The terms “day” and “night” are defined in section 2 of the Code to mean between 6 a.m. and 9 p.m.
WHO IS PERMITTED TO EXECUTE A SEARCH WARRANT?
Only police officers are permitted to be in charge of executing a search; however, the police may obtain assistance in doing so. Such persons who lend assistance are neither required to be named in the warrant, nor required to be peace officers, provided that the police officer who receives the search warrant remains in control of and accountable for the search.
WHAT IS THE PROCESS FOR OBTAIN ING A SEARCH WARRANT?
In order to get a warrant, a police officer must present a judge with an ITO (Information To Obtain) which demonstrate that they obtain reasonable and probable grounds to believe that an offence has been or is being committed. The application is prepared by police for a search warrant must provide sufficient facts to permit a judge to determine whether the warrant should be issued. This process takes place in private so that the target of the warrant does not find out
It must at least contain the following information:
evidence about the alleged offence
the evidence to be seized and,
the location of the search
CAN THE POLICE USE FORCE TO ENTER MY HOME?
Police are required to announce their presence, advise that they have a search warrant, and request permission to enter your home. If you refuse to grant them permission to enter, despite having a search warrant, they ARE allowed to use reasonable force to enter the home and conduct the search. If you do not answer your door or are not home when police attend to execute a warrant, they may also use reasonable force to enter.
ARE POLICE OFFICERS ALLOWED TO SEARCH ANYONE DURING A RAID OR SEARCH?
No, the search warrant does not give authority to the police to search a person who is in the residence being search, except for the cases that fall into one of these three categories: being under arrest (to search for any object that can be a threat to the safety of the police, the accused or the public); if the police has reasonable grounds to believe that the person possesses evidence related to the warrant; officer safety, to identify and confiscate any weapons on the person.
CAN PROPERTY BE SEIZED BY POLICE IF IT IS NOT MENTIONED IN THE WARRANT?
Yes, a peace officer in lawful execution of their duty may seize anything without a warrant or anything that is not mentioned in the warrant that they reasonably believe to be obtained by crime; used in a crime; or affords evidence of a crime.
DO POLICE OFFICERS EVER CONDUCT SEARCHES WITHOUT WARRANTS?
Yes, under certain circumstances a police officer does not require a search warrant in order to conduct a lawful search. For example where a person in control of the object or property gives consent; hot pursuit of an accused person (to prevent escape or ability to harm others); imminent destruction of evidence before a warrant can be properly obtained, emergency searches, when evidence is in plain view (in such a case, the officer is legitimately on the premises, his observation is from a legitimate vantage point, and it is immediately obvious that the evidence is contraband), and more.
DO POLICE HAVE TO ANNOUNCE THEIR PRESENCE WHEN EXECUTING A WARRANT?
A peace officer must orally identify himself/herself before entering a private residence, unless there are exigent circumstances. A proper announcement is necessary even when the door is open, unless it can be said that the open door, in all the circumstances, represented an express or implied invitation to the peace officer to enter. Otherwise, the peace officer becomes a trespasser. A judge who authorizes a peace officer to enter a dwelling house may authorize the peace officer to enter the dwelling house without prior announcement, if the judge is satisfied, by information on oath, that there are reasonable grounds to believe the prior announcement of the entry would expose the peace officer or other person to imminent bodily harm or death or result in the imminent loss or imminent destruction of evidence relating to the commission of an indictable offence.
UNDER WHAT CIRCUMSTANCES CAN THE POLICE SEARCH WITHOUT A WARRANT?
The Code provides statutory authorization to execute a search in the absence of a search warrant if the conditions for obtaining a search warrant exist but, by reason of exigent circumstances, it would be impracticable to obtain a search warrant. Exigent circumstances are “generally found to exist where the police have reasonable grounds to be concerned that prior announcement would:
(i) expose those executing the warrant to harm and/or
(ii) result in loss or destruction of evidence and/or
(iii) expose the occupants to harm
Search Incidental to Arrest
By common law, the police have the power to search a person and his/her immediate surroundings incident to her arrest. The search does not have to be based upon reasonable grounds to believe that the person arrested is in possession of evidence, contraband or a weapon.The search need only have a purpose related to the arrest. Typically, the police claim the need to search incident to arrest, for one of the following reasons:
(i) itheir own protection,
(ii) the protection of the public, or
(iii) the preservation or discovery of evidence.
There is no general power of detention for investigative purposes, but the police may detain an individual if there are reasonable grounds to suspect in all the circumstances that the person is connected to a particular crime, and, the detention is reasonably necessary on an objective view of the circumstances.Where a police officer has reasonable grounds to believe that his or her safety or the safety of others is at risk, the officer may undertake a protective pat-down search of the detainee. The investigative detention and search power is different and must be distinguished from the authority to arrest and the incidental power of search on arrest
Although a person may consent to a search, even to the provision of bodily samples, the consent must be informed. Usually the most important issues in determining whether or not there is a valid consent will be whether the consent in question was given with the full understanding by the person searched of his rights to be free from unreasonable search and seizure together with his clear, cogent and unequivocal consent to such search, notwithstanding his right to be free from unreasonable search and seizure.
The Code gives the police the power to demand breath samples from a motorist in certain limited circumstances. The officer must form the belief that the accused has committed an offence related to drinking and driving within the preceding three hours and that there are reasonable grounds to believe that an offence of exceeding the breathalyzer or impaired operation have been committed.
There is no requirement for a search warrant prior to a courthouse search carried out under an enabling provincial statute. There are several factors that lead to the conclusion that a search warrant is not required. These factors include the fact that courthouse searches are not carried out for the purpose of a criminal investigation and there is a diminished expectation of privacy.
If an officer, in response to a 911-telephone call, has reasonable and probable grounds to believe that a person inside the house is in distress, the officer may enter pursuant to the officer’s duty to protect life. This duty is engaged whenever it can be inferred that the 911-caller is or may be in imminent danger.
Note to readers: This page 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 been charged in relation to the police executing a search warrant, or have been searched and are concerned about whether the police had the lawful authority to conduct a search, it is in your best interests to speak directly to a Toronto criminal lawyer regarding your rights. Call Farjoud Law at (647) 606-6776 to speak with a criminal lawyer to discuss matters relating to search warrants, police searches and all other criminal matters. We are available 24 hours a day, 7 days a week.
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