Do They Need a Search Warrant for That?

A frequent question criminal lawyers get is: “Do they need a search warrant to do that?” If the answer to that is yes then the next question is often, “What do they need to get a warrant?” After that is explained the follow up is often: “Can I do anything about it if they do?”

We will tackle those questions one at a time in a series of posts. Of course, books are written about these things so we will stick with the basics here. 

We will start with the question of whether police require a warrant.

The answer, not surprisingly, is it depends on the context. That’s about the most lawyerly answer you can get. What is the location being searched? What was happening at the time of the search? Were you under arrest? The answer to these and many other questions will determine the answer to the warrant question. 

A few principles set the framework.

There is no general power to search. An officer can’t just search someone or somewhere because they want to. The search needs to be authorized by law

The default standard then is a system of prior authorization for searches and seizures. In other words, the standard is that police need to get warrants to search.

Flowing from that standard, a warrantless search or seizure is presumptively unreasonable. Police can search without a warrant in certain circumstances though. It will be up to the Crown at trial if they wish to justify a warrantless search by establishing that the search was: 

• authorized by law; 

• the law itself is reasonable; and 

• the manner in which the search or seizure takes place is reasonable

A common instance where this plays out is searches incident to an arrest. The Courts have recognized that there is a power to search incidental to arrest. When a person is arrested they will inevitably be searched. If they were driving at the time of their arrest their vehicle will also be searched. In those circumstances it is up to the Crown to show that there were grounds for the arrest as that is what gives the power to search. They will also have to show that the search was connected to the basis for the arrest. 

Officers may validly seize clear evidence of wrongdoing that is in plain view provided that they are otherwise lawfully engaged in the execution of their duties

Another example where a warrant may not be required is referred to as the plain view doctrine. In other words, they have to be performing a function they are allowed to do at the time they see the item that is clear evidence of a crime. 

There are others but those are the most common ones. 

Next time we will look at how a warrant is obtained. For now, we can leave off by saying that the answer to the question of whether police need a warrant is that usually they do.