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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
This topic discusses your rights when the police search and seize your property.
Searches must be authorized by law and conducted in a reasonable manner. Authorization for the police to search and seize is provided by a search warrant, an arrest warrant, various federal or provincial statutes, or your consent. Its purpose is to see whether a crime has been committed and to obtain evidence. The police have wide powers to search; however, all searches and seizures must be conducted in a legal and reasonable manner. The Charter of Rights and Freedoms prohibits unreasonable searches and seizures where an individual has a reasonable expectation of privacy. A reasonable expectation of privacy means that you would not expect a body search when being detained for the purpose of providing a breath sample.
A search warrant is a Court document that gives police authority to enter any place to search for goods. The police also have a right to enter a place if they have a warrant to arrest someone. If the police have a warrant to search your place and you refuse to let them in because you think there is a mistake in the warrant, the police will return with the corrected warrant and carry out the search. The police could charge you with obstruction for refusing to cooperate.
Search warrants must specifically list the place, or your person, and the goods on the search warrant. The police may only search in places where they might reasonably expect to find the goods. For example, if the search warrant specifies a stolen refrigerator and the police find a small bag of marijuana in a dresser drawer, the search may not be reasonable, since the police could not reasonably have expected to find a refrigerator in a small drawer. The search warrant also specifies what goods may be searched for, but evidence in the plain view of a police officer during a search can be seized even though it does not relate to the offence. For example, where police have a warrant to search your home for stolen electronic merchandise and they find 20 marijuana plants during the search, the plants can be seized even thought they are not mentioned in the warrant. You would also be charged accordingly for the drug offence. In some situations, police may search without a warrant if they belief on reasonable grounds that there is some urgency to the situation. Where the police believe that bodily harm or death to someone will occur or that evidence related to a serious offence will be destroyed if they do not enter, they have a right to enter.
In the areas of drugs, liquor, weapons and customs, the law provides for wide powers of search and seizure without obtaining a prior search warrant. Under the various drugs laws, police do not require a warrant to search a place that is not your home. They have authority to break down a locked door on a building if you refuse to open it. If the police reasonably believe that you are carrying illegal drugs, they can search you in your car, or at a bar, without a search warrant. If the police find illegal drugs in your vehicle, they can seize your car.
Under the liquor laws, police may search your vehicle and any person in that vehicle without a warrant if they reasonably believe that the vehicle contains illegal liquor or that liquor is kept in the vehicle for an unlawful purpose. Under the weapons laws, the police must have a warrant to search your home if they believe that illegal weapons may be found. However, if they believe that an offence is about to committed or if gun-fire has taken place, they may enter your home without a warrant in the interests of public safety.
Under the customs laws, all persons coming into Canada or returning home are questioned by Customs officers about their rights to enter the country and what items they brought with them. If they suspect smuggling of any illegal items, they have the powers they need to investigate. Where the Customs Officers obtain a search warrant, they may only search the place specified in the warrant. If they ask to search you in person and you believe they do not have reasonable cause to search you, tell the Customs Officials to take you before a police magistrate, justice of the peace or chief customs officer to make the decision of whether they have reasonable cause.
You may authorize police search and seizure by giving your consent. The police cannot search you in person unless you consent or you are arrested. The police need more than mere suspicion to search you at a rock concert without your consent. They cannot approach you for a random search. However, if you are arrested for an offence, even something as minor as a parking ticket, the police have the authority to search you. The police cannot search your home or even your hotel room without your consent or without a warrant. Sometimes your consent may be implied if you do not say anything. Be clear and vocal if you object to the search. If you give consent to search your home, you can change your mind and ask them to stop.
If you feel that a search has been unlawful or unreasonable, do not interfere with the search. You can seek your remedy later. Ask the names of the police officers involved in the search and seizure and make detailed notes immediately following the incident. Contact a lawyer to assist you in a course of action. If the search is unlawful, the evidence collected by the police is inadmissible in Court and excluded from Court proceedings.