Search and seizure of motor vehicles I. Canadian and US law journal articles: 1. S. Anand, “The Search and seizure of motor vehicles” (1997) 2 Can. Crim. L. Rev. at 145 This article examines special problems of motor vehicle searches like warrantless search, plain view search,and consent searches, in terms of section 8 of the Charter. Issues like curtilage (search warrant of a building extending to nearby vehicles), and intent to perform forensic tests on vehicles are based on contradictory case law that could suspend privacy rights. Anand outlines the cases that have supported individual rights in warrantless searches and those that have allowed exigent circumstances to make exceptions for warrantless searches. Anand argues, like Luther did in 1987, against the sliding scale of section 8 interests that the Ontario Court of Appeal applies, saying cars should have the same privacy protection as dwellings. The legal developments of interest to police officers are: Saskatchewan Court of Appeal contradicted the Ontario and US automobile exception for warrant requirements, forcing the Supreme Court to rule As a result the Supreme Court affirmed no blanket automobile exception, putting the onus on the court to find exigent circumstances and reasonable grounds for searches. The R v. Lim case shows the broad search powers given to police in Canada once an initial search is deemed lawful Plain view searches do not extend search powers; incriminating evidence must surface to conduct further searches The Supreme Court protects against unknowing surrender to searches by endorsing the fully informed test of waiver. This puts the burden on police officers to inform searchees of risks of consenting to searches. But Anand points out that searchee misapprehension about consent does not invalidate consent. This might make a difference to police officers fearful of obtaining consent for searches. 2. J.S. Hjelmaas, “The Need for a Higher Standard of Exigency as a Prerequisite for Warrantless Vehicle Searches” (1986) 71 Iowa L. Rev. at 1161 Joel S. Hjelmaas analyzes the development and application of the automobile exception in terms of the history of the fourth amendment's warrant requirement. He is concerned about the Court‟s blurring since Ross of the exigent circumstances concept under the automobile exception. He claims the automobile exception “has been redefined to allow warrantless searches of vehicles when police easily could have obtained a warrant”. He discusses the Michigan v. Thomas California Supreme Court ruling against the automobile exception for a parked motor home, curtailing the extended privacy rights that the vehicle, as a home, might enjoy. Hjelmaas concurs with Ray that there should be a law “requiring police to obtain a warrant for any vehicle search, unless exigent circumstances render it reasonably impractical” “because of the confusion surrounding the automobile exception and the potential for its misuse as a tool for police covenience”. 3. K.S. Ray, “Overextending the Automobile Exception to Justify the Warrantless Search of Closed Containers in Cars” (1982) 73 J. Crim. L. & Criminology at 1430 Kent S. Ray discusses United States v. Ross, 102 S. Ct. 2157 in which the Supreme Court upheld the warrantless search of a paper bag and leather pouch located inside an automobile that police had probable cause to search. At issue was whether the “automobile exception” should apply to the search of any closed containers within an automobile. This 1982 commentary is critical of relaxed search rules which provides contaxt for current rulings. Ray concludes that “the Court decided Ross improperly. The majority's decision was not supported by exigent circumstances nor by any diminished privacy expectations on the part of the driver.” The ruling curtails fourth amendment rights. Ray distinguishes the leading automobile exception cases, Carroll v. United States , and Chambers v. Maroney which allowed warrantless searches and “automobile cases”, from Chadwick and Arkansas v. Sanders which were "container cases" . Ray concludes that “in Ross, the Court has [thus] improperly relaxed the constitutional restrictions on warrantless searches.” Ray says “a warrant would be required for the search of all containers, whether located inside or outside of cars, unless the combination of probable cause and exigent circumstances permits otherwise…. A police officer's probable cause belief alone, without a magistrate's impartial review, does not justify the search of closed or locked containers in automobiles”. 4. T. Baker, I. Morrison, J. Morley , “The Charter-Starters: Unreasonable Search or Seizure” (1984) 5 (9) Ontario Criminal Lawyers' Association The authors point out that the presence of consent will continue to be taken into account in interpreting the meaining of "unreasonable search or seizure" in the Charter s.8, where the search has no other lawful basis. The authors claim that “ it is of utmost importance that any consent relied on be shown to have been a true one”. This places the onus on police officers to interpret consent correctly which is difficult since “some standard for testing the voluntariness of consent under the Charter is necessary”. Korponey v. A.G. Canada (1982), 65 C.C.C.(2d) 65, per Lamer J., at 73-74 is cited as a test for waiver in the context of statutory procedural rights used by the Supreme Court of Canada. But the waiver standard for cases of search and seizure was rejected by the U.S. Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973). The authors explain the difference between waiver and consent (waiver requires that the person waiving the right be fully aware of the right, and his or her privilege to refuse). Dissension over the consent issue is discuss ed and one justice , (Oliver: Prov.Ct.J) is quoted "… the fact that an accused has consented to it is irrelevant. in my opinion, an accused cannot "consent" to an infringement of his rights under the Charter”. 5. P.C. Prynkiewicz, “California v. Acevedo: The Court establishes one rule to govern all automobile searches and opens the door to another "frontal assault" on the warrant requirement” (1992) 67 Notre Dame L. Rev. at 1269 This comment examines the history and evolution of the automobile exception extending the argument of warrant requirement to “searches conducted outside the home”. The comment concludes that “forcible argument can now be made that the rationales for the automobile exception should be applied to other forms of personal property seized from public places”. This shows the trend toward expanding search powers in the US. 6. G. Luther, “The search and seizure of motor vehicles: learning from an American mistake” (1987) 12 Queen's L.J. at 239. Luther examines the general warrant requirement established by Hunter, noting that Canadian courts are conservative in extending warrantless search powers to police. Luther points out that the search warrant is a major component of s. 8 of the Charter and that Justice Dickson in Hunter set a standard placing the onus on searchers to rebut unreasonableness in warrantless searches. Luther summarizes the contradictions in Canadian and US rulings on motor vehicle searches in the last 80 years as a result of the automobile exception (eg. Chimel, Carrol, Maroney, Coolidge, Cardwell, Ross, Robbins). The probable cause issue and the mobility of vehicles have caused contradictory rulings with some searches being deemed justified and some not. But, Luther concludes, the automobile exception has become unlimited, extending search powers. Luther criticizes the Ontario Court of Appeal‟s sliding scale of s.8 interests and search warrants. The Rao and Noble cases allowed warrantless searches, contradicitng Hunter. 7. D. Stuart, “The Unfortunate Dilution of Section 8 Protection: Some Teeth Remain” (1999) 25 Queen's L.J. at 65 This pro-privacy article discusses the implications of Hunter “for securing the right to be free from unreasonable search and seizure”. Stuart argues that “credibly-based probability” must replace suspicion. Stuart says that “the person authorizing the breach of privacy must make the assessment in an entirely neutral and impartial manner”. Stuart warns against following U.S. jurisprudence on search and seizure because US courts are eager not to limit police powers. II. Canadian textbooks 1. J. A. Fontana, The Law of search and seizure in Canada, 4th ed. (Markham, Ont: Butterworths, 1997) (5th edition, 2002, is checked out at Bora laskin) Fontana defines many aspects of Canadian search and seizure from legislation to „general rules” such as “anticipatory search warrants” (p.33), “announce, demand, show” (p.114), “excise act searches” (p.293) in the 23 chapters which draw upon the 42-page Table of Cases (including unreported cases). Throughout, Fontana distinguishes provincial search and seizure legislation from federal. The chapters or pages of interest to a lawyer lecturing a group of police officers about circumstances for motor vehicle search and seizure include chapter 5 “the execution of search warrants”, chapter 7 “duties of the peace officer in the search and seizure process”, (p.303) CSIS Act searches, chapter 13 provincial legislation, chapter 14 “Hunter” (p.343), consent searches (p.357), plain view searches (p.377), chapter 15 motor vehicle searches (p.402-419), chapter 18 unreasonableness and the Charter section 8 (p.479), chapter 20 police conduct (p.573-614). The first part of Chapter 15 (p. 402-415) discusses warrantless vehicle searches referencing the relevant Acts (Narcotics, Highway Traffic) and all the relevant Canadian cases. 2. D.M. Paciocco, L. Stuesser. The law of evidence, 3rd ed. (Toronto: Irwin Law, 2002) Chapters 2, 8 and 9 of this “concise yet scholarly” summary of the law of evidence are useful for police officers concerned with search and seizure of motor vehicles. The reason some evidence is excluded from admissability (eg collateral facts, p.3) and the trend of increasing admissability of evidence might be of interest to police officers. An overview of restricitons on admissability (p.7) and the role of the judge in non-jury trials helps distinguish the Canadian approach. The rules about self-incrimination are tricky so chapter 8 is essential. The influence of common law rules, pre-Charter principles and the Canada Evidence Act are discussed. Chapter 9 deals with improperly obtained evidence and the rules to “preserve the integrity of the courts which should not be seen to receive the fruits of lawless activity” (p.276). The Charter 24(2) about unconstitutuionally obtained evidence is explained in detail. This is a tricky concept because it balances a remedial imperative with protecting the repute of the administration of justice (p.277). The R. v. Collins case of 1997 is cited as a challenge to the effectiveness of the law of evidence in safeguarding the administration of justice. Police officers need to understand the fine line that puts the court under dual pressure in considering admissability of evidence obtained by police. The need for causality between police breach of conduct (Charter breach) and discovery of evidence is clarified (p.286). There is a discussion of conscriptive versus non-conscriptive evidence (p.290) and the unofficial hierarchy of Charter rights that makes some breaches worse than others. This kind of practical information is particularly useful for police officers who need to understand how the laws are practiced by law enforcement. Mitigating factors in obtaining evidence (p.305) are especially applicable to motor vehicle apprehension. R. v. Belnavis is cited (p.307) to show how patterns of charter of violations can make evidence inadmissable. 3. R.J. Sharpe, The Charter of Rights and Freedoms (Toronto : Irwin Law, 1998) Chapter 14, “CHARTER RIGHTS IN THE CRIMINAL PROCESS” part B. on “UNREASONABLE SEARCH AND SEIZURE” discusses Charter section 8 rights as “relative”. This is relevant to lawyers addressing police on vehicle search and seizures. The authors say “the justification for a search should be assessed before it has been conducted”. The authors point out faulty interpretations of the Charter: “… It would be inconsistent with the notion of an individual right to hold that, if the police find something, the search was reasonable, for that is to invite searches on a whim…” III. Relevant Canadian cases (chronologically) 1. R. v. Asencios, (1987), 34 C.C.C. (3d) 168 (Q.C.A.) Canadian Abridgment classification: C16.IV.14.a (Criminal law, Charter of Rights and Freedoms) The appellant invoked a number of grounds of appeal including unconstitutional searches without warrant under Section 10 of the Narcotic Control Act, the lack of police officers‟ reasonable and probable grounds for their first search on July 25, 1985, the trial judge erred in concluding that appellant was not entitled to the protection of s. 8 of the Charter against unreasonable search and seizure. The judge concluded that the police had acted illegally in entering the garage leased by the appellant to search for narcotics. He was of the view, however, that s. 8 of the Charter did not apply because the appellant was using the premises exclusively for criminal purposes. Having no reasonable expectation of privacy in the use he made of the premises, the appellant had no right to the protection of s. 8 against unreasonable search and seizure. This case received positive treatment and was followed in 4 other cases. 2. R. v. MacDonald, (1988), 44 C.C.C. (3d) 134 (P.E.I.C.A.) Canadian Abridgment classification: C16. IV.31.b (Criminal law, Charter of Rights and Freedoms) The police had no warrant and did not inform the accused of his right to counsel. They found a quantity of marijuana in the car, and the accused admitted it was his. At trial, the accused's statement was excluded because the search had been in contravention of the accused's rights under ss. 8 and 10(b). The appeal was allowed. The real evidence should have been excluded. This had been a flagrant violation of the accused's right to protection against unreasonable search and seizure. The police had not been acting on any reasonable grounds. This case has received negative treatment twice but positive treatment 10 times. 3. R. v. Ironeagle, (1989), 49 C.C.C. (3d) 339 (Sask. C.A.) Canadian Abridgment classification: C16. IV.31.b (Criminal law, Charter of Rights and Freedoms) The police had stopped the accused when they spotted him in a vehicle which they had been told had been seen frequently at a house where drug trafficking was suspected. At trial, the search was held to have been valid, and the evidence obtained on the search was admitted. The accused argued that the trial judge erred in admitting this evidence. The appeal was allowed and the conviction was set aside. The police had not a reasonable belief that the accused had committed or was about to commit an offence. He was detained and searched on mere suspicion. This case is cited in other cases to show that location does not give reasonable expectation of privacy. This case has received positive treatment. 4. R. v. Cheecham, (1989), 51 C.C.C. (3d) 498 (Sask. C.A.) Canadian Abridgment classification: C16. IV.31.b (Criminal law, Charter of Rights and Freedoms) The judge had ruled inadmissible evidence of plant material seized in a search of a tire because the search was made without a warrant. The appeal was dismissed. The reliability of the informer not being established, there was no means of determining whether reasonable and probable grounds existed to justify the belief which resulted in the search. This cases is cited in other cases to support admission of evidence when appellant is manifestly culpable. This case supports the test of "totality of the circumstances" in assessing informer‟s credibitlity. This case received negative treatment twice. 5. R. v. Ladouceur, (1990), 56 C.C.C. (3d) 22 (S.C.C.) Canadian Abridgment classification: M5.II.2.e.ii. Motor vehicles Constitutional issues A driver was stopped randomly by an officer, not as part of an organized program, and not with reasonable grounds to believe an offence had been committed. This case is cited because it supports the “marked difference between the expectation of privacy in a dwelling and an automobile”. The Court found that cars can be lawfully stopped by police officers virtually at random. The case was appealed, the appeal was dismissed. This case was not followed once and followed 3 times. 6. R. v. Acciavatti, (1993), 80 C.C.C. (3d) 109 (Ont. C.A.) Canadian Abridgment classification: C16. VII.3.c (Criminal law, Pre-trial procedure) This case received negative treatment in R. v. France (above). The crown conceded that consent to a search which led to the discovery of the narcotics was not an informed consent, and that the search therefore breached the appellant's rights under Charter section 8. The issue was whether the evidence should have been excluded under section 24(2) of the Charter. The appeal was allowed. This case is cited to support that admission of real evidence which existed prior to and independent of the Charter breach would not ordinarily render the trial unfair. This case was distinguished in 3 other cases. 7. R. v. Lee, (1995), 98 C.C.C. (3d) 326 (B.C.C.A.) Canadian Abridgment classification: C16.IV.14.a (Criminal law, Charter of Rights and Freedoms) At issue was whether the trial judge had erred in admitting into evidence the drugs and handgun which had been found by police during a search of the vehicle from which the accused had emerged shortly before. The judge found the accused had failed to establish a breach of the Charter section 8. The appeal was dismissed. This case is cited to support that “exclusive possession or a proprietary interest in a place is not necessary in order to have a reasonable expectation of privacy”. 8. R. v. Belnavis (1997), 29 M.V.R. (3d) 1, 216 N.R. 161, 118 C.C.C. (3d) 405, 151 D.L.R. (4th) 443, 103 O.A.C. 81, 10 C.R. (5th) 65,  3 S.C.R. 341, 46 C.R.R. (2d) 272 (S.C.C Canadian Abridgment classification: IV.31.b (Criminal law, Charter of Rights and Freedoms) This appeal decision reversed R. v. Belnavis, 1993 CarswellOnt 3087 (Ont. Gen. Div. Mar 05, 1993) . The accused was charged with possession of stolen property. The accused claimed that the evidence of the stolen property should be excluded under s. 24(2) of the Charter, on the basis that their rights under s. 8 of the Charter had been violated by the warrantless search of the car. The officer said that he opened the trunk because he "felt there could be some more stolen property there." The trial judge found that the search was unreasonable, and breached Charter s. 8 right. The judge found that while the admission of the evidence would not render the trial unfair, the seriousness of the breach required exclusion of the merchandise from evidence. Accused were acquitted and the Crown appealed. The officer's conduct went beyond the kind of state intrusion that reasonable motorists would regard as incidental to operating a motor vehicle. Based on the totality of circumstances, the accused had established a reasonable expectation of privacy relating to the car. The officer testified that he did not have reasonable and probable grounds for the arrest on the charge before the search. There was no imminent danger that the vehicle would be removed from police control and there was no evidence to suggest that the search was made to secure the vehicle for towing to ensure police safety. Absent statutory authority, police may search a lawfully detained vehicle if an officer has reasonable and probable grounds to believe the search will disclose evidence, and if exigent circumstances exist that make it unfeasible to obtain a warrant. In this case, there were no exigent circumstances to justify a warrantless search. This case was reversed upon appeal, and it received negative treatment in 3 other cases. 9. R. v. France,  NWTSC 32, 1 C.R. (6th) 27,  10 W.W.R. 664 (NWTSC) Canadian Abridgment classification: C16.IV.14.a (Criminal law, Charter of Rights and Freedoms) Based on other officer's interest and his own earlier observations, including the fact that driver had seemed nervous and had driven from another province, officers stopped a van second time. Officer searched bags in back of van and found marijuana. Accused were charged with possession for purpose of trafficking. Accused brought application for exclusion of evidence found as result of search. Application granted. The rights of accused under ss. 8, 9 and 10(b) of the Charter were infringed . The second stop was not made for any road safety reason. Officer's observations together with knowledge of other officer's interest in van did not amount to articulable cause.
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