Search and seizure of motor vehicles by TPenney


									                                 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

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”
     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,

        (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

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

     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

     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

     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

     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

     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, [1997] 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

9.   R. v. France, [2002] NWTSC 32, 1 C.R. (6th) 27, [2002] 10 W.W.R. 664 (NWTSC)

     Canadian Abridgment classification: C16.IV.14.a (Criminal law, Charter of Rights and

     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.

To top