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When Can the Police Search Me? What Are My Rights?
This is a frequently asked question. As qualified criminal lawyers Calgary, we know that the police cannot and do not have the right to stop and search you at any time. A police officer must have reasonable grounds to believe that you have been involved in a crime. If they have grounds, then they are allowed to conduct a search and possibly seize evidence. This means the police must follow certain procedures and respect your rights under the Charter of Rights and Freedoms. If they do not, then your lawyer may argue that the evidence they seized is inadmissible. This article will include the most common questions we get asked and is designed to help you understand your rights and remedies.
What Happens if I am Arrested or Detained?
Can the Police Search My car in Canada?
If you have been detained or arrested, the police have a right to search your or (in some cases) your immediate surroundings (for example, your car, vehicle, etc).
Upon an arrest or detention, a police officer is allowed to conduct a search for any of these reasons:
- To ensure police officer safety or the safety of the public (this is typical if they suspect a weapon was involved in the incident)
- To prevent the destruction of evidence (this is typical when drugs are suspected to be involved)
- To locate evidence of an offence for which you have been arrested
If you have been arrested that means either the police have a warrant for your arrest or reasonable grounds to believe that a crime has been or is about to be committed. A search and possibly a seizure (depending on what they find in a search) is part of the investigation and one of the first steps in gathering evidence against you. If you have been arrested, they are required to inform you of the arrest and the reason for your arrest. Other rights are triggered in this instance. Other search parameters are also triggered if you have been arrested.
Can the Police Search my Bag in Canada?
If you have been detained their search powers are limited. This means they can pat you down for officer safety reasons or to reduce a potential threat to the public but in general, they are not allowed to search your personal belongings such as your bag or backpack.
Can the Police Search my Phone in Canada?
If the police want to search your cell phone, they first must arrest you. They are allowed to seize your phone. However, they need a warrant in order to search your cell phone. Typically, this type of warrant will be granted for serious criminal offences such as violent crimes or drug trafficking or possession for the purposes of trafficking.
Can the Police Search my House in Canada?
In some circumstances, they can search your house. In general, they need a search warrant or they need your informed consent if you are voluntarily agreeing to allow them to search. To understand informed consent keep reading.
Can the Police Strip Search me in Canada?
Strip searches are highly invasive searches. If the police are investigating a recent sexual assault allegation they may search parts of your body by using a swab. This would involve swabbing parts of your body (including your genitals). This is effectively seizing your dna.
If the police are investigating drug offences and they have reasonable grounds to believe you swallowed drugs (or evidence) or hid drugs (or evidence) in a part of your body, they can and likely will confine you until they can recover the suspected evidence.
Strip searches should be conducted at a police station and your privacy and dignity should be respected.
Can I Say no to a Police Officer who Wants to Search me or Can I not Consent to a Search?
In some cases, yes you can and should say no or not consent to a search. However, if the police have a search warrant, this means a judge has given them the power to search. In this case, you cannot deny the search because a judge has given them the power to search you or the location identified in the warrant. However, just because a warrant was granted, and they have the power to search and seize items, this can still be challenged in court. It will be important to speak to your lawyer. Your lawyer will need to examine several pieces of evidence in order to determine if this can be challenged and if the evidence is likely to be admitted or not.
If the police do not have a warrant, then the other legal way to conduct a search is if you provide informed consent. The police must inform you why they want to conduct a search and what they are looking to seize. They should also explain the potential legal consequences if they agree. This is what “informed consent” means. However, wherever they search should be limited to what you have agreed or consented to. Before you agree to allow a police officer to search at a location you should speak with a lawyer so that you understand your legal rights and you are fully protected.
What is an Unreasonable Search and Seizure?
Section 8 of the Charter of Rights and Freedoms provides protection from unreasonable search and seizure. This means that any search conducted by a police officer or person in authority must be conducted in a reasonable manner and it must be authorized by law. There are several pieces of legislation that allow an officer to conduct a search. Additionally, there are common law grounds that permit searches. However, if your lawyer determines none were viable then it may be the search will be deemed unreasonable because it was not “authorized by law”. Furthermore, any search that is conducted must be done in a reasonable manner meaning no unnecessary damage to your property. If your lawyer argues your Section 8 Charter right was violated, then a court may exclude any evidence as a result of the search.
What Should I do if I’ve Been Arrested and Searched?
You should speak to a lawyer immediately. Having access to a lawyer is another Charter right that allows you access to speak with a lawyer. You should always exercise that right. Once you have a court date, you should retain a skilled and experienced lawyer like the ones at Alberta Legal who have experience analyzing police information and how the evidence was collected in order to give you an assessment of your case. Choosing the right lawyer can make the difference between being convicted or being found not guilty and therefore not facing jail or a criminal conviction.
The lawyers at Alberta Legal are serious lawyers who defend serious allegations every single day. Contact us today.