Strip Searches - Presumptively UnreasonableThe Supreme Court of Canada recently released its reasons in the case of R. v. Golden 2001 SCC 83. Toronto police were targeting an area known for drug trafficking when they observed the accused traffic in what was believed to be cocaine. An officer, who was positioned in an observation post and with the aid of a telescope, saw the accused conduct two transactions with persons in a Subway sandwich shop. Following the second transaction, the officer advised the take down team of his observations and instructed these officers to arrest the accused. These officers entered the shop and arrested the accused and two other persons. During the arrests police found what was believed to be crack cocaine under a table where one of the suspects was arrested while the accused was observed crushing crack cocaine between his fingers. The accused was pat frisked and his pockets were examined but no weapons or evidence was found. The arresting officer led the accused to a landing at the top of a stairwell where he undid the accused's pants, pulled his pants and underwear back, and observed a clear plastic wrap with a white substance protruding from between the accused's buttocks. While attempting to remove the package, a scuffle occurred. Officers escorted the accused to a seating booth within the sandwich shop, asked the remaining patrons to leave, locked the front door, forced the accused to bend over a table, lowered his pants to his knees exposing his buttocks and genitalia, and tried to seize the package. The accused clenched his buttocks tightly preventing the police from removing the package. The accused accidentally defecated, however the package was not dislodged. An officer retrieved a pair of dishwashing gloves from an employee of the shop and tried again to remove the package as an officer held the accused's legs while he was face down on the floor. Once the accused relaxed his muscles, the officer removed the package and found it to contain 10.1 grams of cocaine. The accused was subjected to a further strip search at the police station. At trial the accused was convicted of possession of a narcotic for the purpose of trafficking and his appeal to the Ontario Court of Appeal was dismissed. The accused further appealed this decision to the Supreme Court of Canada arguing that his s.8 Charter right to be secure against unreasonable search and seizure was violated and that the evidence should be excluded under s.24(2) of the Charter. The majority (5:4) of the Court examined the long-standing common law rule respecting the power to search incidental to arrest. In reviewing the jurisprudence, the Court continued to recognize that searches conducted in the absence of a warrant are prima facie unreasonable, although a search performed incidental to arrest is an exception to this presumption. At common law, the police have the right to search an arrested person for weapons or evidence related to the arrest. Although a search incidental to arrest does not generally require reasonable grounds beyond the grounds necessary to support the arrest, the Court carved out an exemption to this common rule in cases of strip searches. In identifying strip searches as representing a significant invasion of privacy, and often humiliating, degrading, and traumatic experiences, the majority held that to undertake this type of intrusive search, the officer must possess reasonable grounds justifying the strip search in addition to justifying the arrest. Strip searches carried out as a matter of routine or policy, or abusively or for the purpose of humiliating or punishing the arrestee will be unreasonable. Furthermore, the Court stated that strip searches should be conducted at the police station unless there are exigencies requiring the search be conducted in the field. In this case, the Court adopted the following definition of a 'strip search': [T]he removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely genitals, buttocks, breasts (in the case of female), or undergarments. The Court found the accused had actually been subjected to three strip searches: 1. in the stairwell; the officer pulling back the pants and underwear of the accused and looking at the accused's buttocks 2. in the restaurant; police pulling down the accused's pants and underwear to his knees while attempting to seize the package 3. at the police station; the accused was again strip searched For practical purposes, the following points are noteworthy: The common law power to search incident to arrest does include the power to strip search. Although permissible as an incident to arrest, strip searches are presumptively unreasonable and the onus lies with the police in justifying the search. For a strip search to be justified as an incident to arrest, the following three requirements must be met in balancing the privacy interests of the individual and the interests of the police and the public in securing evidence and ensuring safety: 1. the arrest must be lawful. The lawfulness of the search derives from the legality of the arrest. If the arrest is not lawful, the resulting search will not be lawful either. In many cases, the belief that reasonable grounds for arrest exist is a condition precedent to a valid arrest. In the absence of reasonable grounds upon which to base the arrest, any search conducted will also be invalid 2. the search must be incidental to the arrest. The purpose or objective of the search must in some way be "connected" or "related" to the arrest and the manner and scope of the search must bear some reasonable relationship to the offence suspected and the evidence sought. Searching does not envelop purposes that have no connection to the reason for the arrest. For example, a search for drugs secreted on a person following a drug arrest would be incidental to arrest. However, an arrest on traffic violations would not permit the search for drugs even if the officer had prior knowledge of the arrestee's involvement with drugs. In conducting a strip search, the police must not only possess reasonable grounds justifying the arrest, but must possess additional reasonable grounds justifying the strip search for safety or evidentiary purposes in the particular circumstances of the arrest. These reasonable grounds are independent from the grounds justifying the arrest. Mere possibility that a person has weapons or evidence upon their person is insufficient to justify a strip search. 3. the search must be conducted in a reasonable manner. The physical manner or method of the search must be carried out in a just and proper fashion. The search must not be conducted by abusive means and the scope of the intrusion must be proportionate to the objectives of the search and other circumstances of the situation. In deciding whether the manner in which a strip search was conducted meets the constitutional requirements of s.8 of the Charter, the following questions provide guidance: Was the search conducted at the police station, if not, why? Was the health and safety of all involved ensured? Was the search authorized by a supervisor? Was the officer the same gender as the arrestee? Was the number of officers involved in the search reasonable? Was the minimum force necessary used? Was the search conducted in private so no others not involved can observe? Was the search conducted as quickly as possible? Was the search conducted in a fashion that ensures a person is not completely undressed at any one time? Was the search only a visual inspection or was there physical contact? · Was the arrestee provided the option of self-removal or medical Assistance if a weapon or evidence is observed in a body cavity? Was a proper record of the reasons and manner of search kept? Strip searches are inherently humiliating and degrading regardless of the manner in which they are conducted and therefore cannot be carried out as a matter of routine or policy. Strip searches performed routinely or under policy will not be rendered reasonable unless there is a compelling reason justified in the circumstances. There is a distinction between strip searches on arrest and strip searches related to safety in full custodial settings such as a prison. The appropriateness of routine strip searches of individuals integrated into a prison population cannot be used to justify strip searches of individuals briefly detained by police or held overnight in cells. Although police officers have legitimate concerns that short term detainees may conceal weapons, these concerns cannot justify routine strip searches of all arrestees regardless of the particular circumstances surrounding the arrest and must be addressed on a case-by-case basis. · Strip searches are to be generally conducted at a police station except in cases of exigent circumstances where the police have reasonable grounds to believe that the search is necessary in the field such as an urgency to search for weapons that could be used to harm the officer, others, or the arrestee. A person should be provided the opportunity to remove items themselves or the assistance or advice of trained medical professionals should be sought to ensure material can be safely removed. When the reasonableness of a strip search is challenged, the Crown (police) bears the onus of proving on a balance of probabilities that it was warranted. In the case of strip searches in the field, the police must demonstrate reasonable grounds justifying the strip search, exigent circumstances, and that the search was conducted in a reasonable manner. In the case of a strip search at the police station, the police must demonstrate reasonable grounds justifying the strip search and that the search was conducted in a reasonable manner. Exigent circumstances need not be proven. In this case, the majority found the search unreasonable since the officer lacked grounds to believe the accused had drugs secreted on his body and there was an absence of exigency (the location of the arrest was 2 minutes from the police station). Despite the officer's experience of discovering cocaine secreted on persons in their private areas on at least 12 previous narcotic related arrests (out of 200 arrests he made), this was insufficient to justify the strip search at the restaurant. The officer had no information that the accused neither reached into his pants to remove any drugs nor was there any bulging or protrusion to suggest concealment. As the Court noted, "the decision to strip search was premised largely on a single officer's hunch, arising from a handful of personal experiences". Interestingly though, the Court found that there would have been reasonable grounds to conduct the strip search at the police station on the basis that the police observed two drug transactions, crack cocaine was found under the table at the restaurant, the accused was observed crushing crack cocaine between his fingers, and the officer's limited experience in suspects concealing drugs. Finally, even though the accused resisted the officer's attempts to remove the package by clenching his buttocks, the way the search was carried out demonstrated considerable disregard for the accused's dignity and physical integrity. Since the accused had already served his 14-month sentence in full, the Court found no merit in engaging in a s.24(2) analysis to determine if the evidence should none-the-less be admitted despite the Charter breach. As a result, an acquittal was entered. Editor's Note: The search of a person may be divided into essentially four distinct categories: · "pat down" or "frisk" search · "strip" or "skin" search · "body cavity" search · "bodily substance" search It is without dispute that the police have the power to frisk search an arrestee incidental to that person's arrest. A frisk search is a "relatively non-intrusive procedure: outside clothing is patted down to determine whether there is anything on the person of the arrested individual. Pockets may be examined but the clothing is not removed and no physical force is applied. The duration of the search is only a few seconds" (Cloutier & Langlois v. Bedard (1990) 53 C.C.C. (3d) 257 (S.C.C.)). However, the more physical or intrusive a search a greater justification by the police is required. Body cavity searches (physical examination of a person's body orifices) are inherently more intrusive than a routine frisk search or strip search and will require a high level of justification (reasonable grounds)(R. v. Greffe  1 S.C.R. 755 (S.C.C.)). As noted in Golden, the police should give the arrestee the opportunity to remove the item or seek proper medical assistance in the item's removal. In Stillman v. the Queen  1 S.C.R. 607 (S.C.C.), the Supreme Court carved out an exception to the scope of search incident to arrest respecting the seizure of bodily samples (namely hair samples, buccal swabs, and teeth impressions). Absent valid statutory authority, "the common law power of search incidental to arrest cannot be so broad as to encompass the seizure.of bodily samples in the face of a refusal to provide them". In short, the greater the intrusion into one's personal dignity and privacy the greater the justification and constraints as to the manner in which they may be reasonably conducted.