search seizure cases Flashcards. 495 at page 528; Monney at paragraph 34; R. v. Jacques, [1996] 3 S.C.R. Where a government body has regulatory or administrative functions as well as the function of investigating penal offences under the regulatory or administrative statute, a shift in state action from regulatory or administrative inspections to penal investigations affects the applicable Charter standards. R. v. Jones, 2017 SCC 60. In other cases, the Court appears to understand the issue of standing in the narrower sense described above, as a means of limiting arguments based on the constitutional rights of third parties (see e.g., Edwards at paragraph 34; R. v. Ferguson, 2008 SCC 6 at paragraph 61). The search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest (R. v. Fearon, [2014] 3 S.C.R. 488; Stillman at paragraphs 62, 226; Evans at paragraph 50; Baron v. Canada, [1993] 1 S.C.R. 53) and must be specific in its focus. However, control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest (Marakah at paragraph 38). CA) at paragraph 63; Jarvis (2002)). There are certain cases that could lead to an extended search, but usually the search warrant restricts a police search as much as it allows it. Accordingly, a person may have a residual and continuing privacy interest protecting against the subsequent use or disclosure — and potentially retention — of information that has been divulged for a specific or limited purpose (Law at paragraph 23; Dyment at pages 432-435; Mills (1999) at paragraph 94; R. v. Dore (2002), 166 C.C.C. A client has a reasonable expectation of privacy in all documents in the possession of his or her lawyer, which constitute information that the lawyer is ethically required to keep confidential (Lavallee at paragraph 35; Chambre des notaires at paragraph 35). Because the purpose of section 8 is to prevent unjustified searches before they happen, the default standard is a system of prior authorization. 145 at 159; R. v. Gomboc, [2010] 3 S.C.R. In Reeves, the majority distinguished the “taking” of a home computer by police, with the consent of a co-owner, from the situation in which a citizen voluntarily brings an item to police. The Supreme Court has repeatedly emphasized the close relationship between bodily privacy and human dignity (see e.g., Tessling at paragraph 21; R. v. Golden, [2001] 3 S.C.R. Considerations that may be helpful in the reasonableness analysis include: the nature and purpose of the legislative scheme, the mechanism employed having regard for the degree of its potential intrusiveness and its reliability, and the availability of judicial supervision (Del Zotto; Goodwin at paragraph 57). 30 Whether there was a search and seizure within the meaning of the Amendment, and whether a complainant’s interests were constitutionally infringed, will often turn upon consideration of his … Reasonable grounds can be based upon detailed "tips" furnished by a reliable informer (Debot at pages 1168-1169; Plant at pages 296-297; see also Grant (1993); Wiley). Diagrams. In assessing whether the predominant purpose of an investigation is to determine the penal liability of an individual, regard must be had to all relevant factors that bear upon the nature of the inquiry (Jarvis (2002) at paragraph 93). Prisons carry a decreased expectation of privacy (Weatherall; R. v. Conway, [1989] 1 S.C.R. Search. The public interest in maintaining an effective emergency response system (i.e., 911 calls) is significant enough to merit some intrusion on a dwelling house resident’s privacy interest (R. v. Godoy, [1999] 1 S.C.R. In some circumstances, courts may find implied authority for intrusions on diminished privacy interests (Cole; M.(M.R.)). Topic: Civilian Rights, Discrimination, Police Accountability, Search and Seizure News Release Supreme Court of Canada upholds strong protections against warrantless search and seizure Posted on March 17, 2017 336). In such cases, the characterization of the subject matter can make a major contribution to the analysis (see e.g., Patrick at paragraphs 29-30, explaining that the garbage bag at issue in that case was more aptly characterized as a “bag of ‘information’ whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle”; see also Tessling at paragraphs 34, 58; Cole at paragraph 41). The context of the search, and the activity that brings a person into contact with the state, can have an impact on the person’s reasonable expectation of privacy. There can be no reasonable expectation of privacy in something that is knowingly exposed to the public, or to a section of the public, or abandoned in a public place (Tessling at paragraph 40; see also R. v. Boersma, [1994] 2 S.C.R. For example, in the case of information about activities taking place in a dwelling house, an expectation of privacy can be presumed in the claimant’s favour (Plant at paragraph 37; Gomboc at paragraph 25). Consent to collect a bodily sample for medical purposes does not allow the police to use the sample for investigative purposes (Dyment at page 431). For the consent to be voluntary, the person must have had a real choice in providing the purported consent (see Godbout v. Longueuil (City), [1997] 3 S.C.R. 263 at 273); in commercial space (Thomson Newspapers at 517-19; McKinlay Transport at 641); in private cars (R. v. Wise, [1992] 1 S.C.R. When determining whether a claimant had a subjective expectation of privacy, “reasonableness” is not the issue (Patrick at paragraph 37). SCOTUS grants review in two cases concerning law enforcement officers’ search-and-seizure authority Kate Carsella / Ballotpedia via The Center Square; Nov 25, 2020 Nov 25, 2020; Facebook; Twitter; WhatsApp; SMS; Email; People walk outside the Supreme Court in Washington, Monday, March 16, 2020. 341 at paragraphs 22, 24; Edwards at paragraphs 45-47, 49). Compliance with one regime does not remove the need for compliance with the other. However, where no specific limits are placed by the police or the consenting party on the use to which a bodily sample is to be made, there may be no subsisting expectation of privacy protecting against the use of the sample in a later investigation that was not and could not reasonably have been anticipated by the police at the time the sample was taken (R. v. Arp, [1998] 3 S.C.R. Clear this text input. 311 at paragraph 22). For situations involving emergency entries to protect life and to prevent death or serious injury, see Godoy, in which police entered a dwelling house without a warrant as a result of a 911 call. This principle is not absolute, however. Mapp v. Ohio. While privacy is a central or core concern under section 8 of the Charter, section 7 also provides residual protection for privacy interests (R. v. Mills, [1999] 3 S.C.R. 678, the Supreme Court decided that self-incrimination principles in relation to warrant powers to collect DNA evidence at sections 487.04 to 487.09 of the Criminal Code should be analyzed under section 8 of the Charter and that analysis need not turn to section 7 (see paragraphs 1, 33-35; see also Wakeling v. United States of America, [2014] 3 S.C.R. In many cases this will be a straightforward matter. At the same time, section 8 permits reasonable searches and seizures in recognition that the state’s legitimate interest in advancing its goals or enforcing its laws will sometimes require a degree of intrusion into the private sphere (Goodwin v. British Columbia (Superintendent of Motor Vehicles), [2015] 3 S.C.R. In the context of shared computers, in which multiple people may have privacy interests, waiver by one rights holder does not constitute waiver for all rights holders (Reeves at paragraph 52). Where a search warrant or production order is sought in respect of a journalist or the media, the issuing judge should apply a four-part analysis. In the context of routine crime investigations, investigative detentions where there are reasonable grounds to detain (Mann), in schools (Kang-Brown) or in bus stations (A.M.) — and presumably by extension in certain other locations — there exists, at common law, a police power to use sniffer dogs where police have a “reasonable suspicion” that evidence of an offence will be discovered (Chehil; R. v. MacKenzie, [2013] 3 S.C.R. M.N.R., [1993] 2 S.C.R. A case in which the Court held that the warrantless seizure and search of cell phone records revealing the location and movements of a cell phone user over the course of 127 days violates the Fourth Amendment. In general, police must have either consent or a warrant to seize such samples or impressions (Stillman). Devices used to sense heat emanations from a house are sufficiently crude at this stage of their development that the information gathered by them is non-intrusive and mundane (Tessling at paragraphs 54-55). Informational privacy has been defined as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” (Tessling at paragraph 23; see also Patrick, Gomboc, Cole, A.M.). A penile swab is in some ways less invasive than the taking of dental impressions or the forceful removal of hair from an accused’s body. 1659). 250; Kang-Brown; A.M.). Modeling Authority Commitments in Two Search and Seizure Cases Matthew Carey Thomson Reuters Legal Editorial Operations mscarey@gmail.com ABSTRACT This paper proposes a method for modeling legal rules from common law jurisdictions in terms of the authority commitments they create for future cases. Privacy concerns in relation to information are at their strongest where aspects of an individual’s identity are at stake, such as in the context of information “about one's lifestyle, intimate relations or political or religious opinions” (Mills (1999) at paragraph 81; Thomson Newspapers at 517; Branch at paragraph 62). In order to constitute a “seizure”, a “taking” by the state need not be directly from the person whose rights are affected. The privacy protection offered by the Charter and the Privacy Act can overlap but differences in purpose and scope between the two regimes exist and ought not to be overlooked. The standard referred to as “reasonable suspicion" or "reasonable grounds to suspect" is to be contrasted with the higher standard of "reasonable grounds to believe". Rep. 62 (1604), at 63). v. N.J. Terry v. Ohio. Nothing here should be taken as legal advice. A number of international instruments, which are binding on Canada, include provisions protecting aspects of the right to privacy: article 17 of the International Covenant on Civil and Political Rights; article 16 of the Convention on the Rights of the Child; article 22 of the Convention on the Rights of Persons with Disabilities; and article V, IX and X of the American Declaration of the Rights and Duties of Man. There is no intrusion on a reasonable expectation of privacy where a person is required to produce a licence, permit or other documentary evidence of a status or compliance with a legal requirement that is a lawful condition of the exercise of a right or privilege (R. v. Hufsky, [1988] 1 S.C.R. Officers may validly seize clear evidence of wrongdoing that is in plain view provided that the officers are otherwise lawfully engaged in the execution of their duties (see Mellenthin; Law; Belnavis; Boersma; Buhay at paragraph 37). There is effectively a presumption of unreasonableness for all searches and seizures that are warrantless in criminal or quasi-criminal matters. A reasonable law is one that strikes a reasonable balance between the particular state interest that is pursued by the law and privacy (Shoker; S.A.B. If so, was the search or seizure reasonable? 668, and especially at paragraphs 77-89, 94, 99 and 108, where the court embedded privacy analysis based on section 8 considerations within analysis of a section 7 principle of fundamental justice). A reasonable expectation may nevertheless be found in commercial documents and section 8 is therefore capable of applying in this context (see e.g., Hunter v. Southam; McKinlay Transport; Thomson Newspapers; and Baron). When law enforcement officers violate an individual's constitutional rights under the Fourth Amendment, and a search or seizure is deemed unlawful, any evidence derived from that search or seizure will almost certainly be kept out of any criminal case … Private offices also generally attract a high expectation of privacy (R. v. Rao (1984), 12 C.C.C. Privacy is not an all or nothing right. 621 at paragraph 58). Argued. Section 8 of the Canadian Charter of Rights and Freedoms protects your right to be free from any and all unreasonable searches and seizures. 3 at paragraphs 1, 5, 32). Patterns of electricity consumption as measured by a digital recording ammeter, which is used to measure electrical power flowing into a residence and which permits a strong inference of the presence of a marihuana grow operation, are sufficiently revealing of activities inside the home to attract a reasonable expectation of privacy (Gomboc at paragraphs 36-38, 80-81 and 142; but see Plant, in which less detailed electricity consumption records were held not to attract a reasonable expectation of privacy). However, the mere fact that a person enters a public space does not mean that the person expects to be personally identified and subjected to extensive surveillance (Spencer at paragraph 44). T.L.O. Like most of the rest of the Bill of Rights, the Fourth Amendment has its origins in seventeenth-and eighteenth-century English common law. Privacy also encompasses a wider notion of control over, access to, and use of information. The reliability of a search or seizure mechanism is directly relevant to its reasonableness (Goodwin at paragraph 67). A plain view seizure cannot form the basis for a “fishing expedition” (Mellenthin). 387; R. v. Saeed, [2016] 1 S.C.R. Private dwellings, in contrast to other premises, carry heightened privacy expectations (Kokesch at pages 16-18; Feeney at pages 43-45; see also R. v. Landry, [1986] 1 S.C.R. The principle that privacy is a “normative rather than a descriptive standard” must also be kept in mind (Tessling, paragraph 42; Gomboc, paragraphs 34, 115; Spencer, paragraph 18; Jones, paragraphs 47-51). 253), or scents (Evans at paragraphs 12-21; R. v. Kokesch, [1990] 3 S.C.R. The characterization of a search or seizure as criminal on one hand or administrative or regulatory on the other is relevant in assessing its reasonableness (Goodwin at paragraph 60). 417 at 431; R. v. Colarusso, [1994] 1 S.C.R. Travellers using public transportation maintain a reasonable expectation of privacy in their luggage (R. v. Kang-Brown, [2008] 1 S.C.R. Section 8 of the Charter of Rights and Freedoms: Search and Seizure Section 8 of the Charter addresses what it mans to have a reasonable expectation of privacy. However, the intrusion on the privacy rights of a third party may be relevant to the question of whether the search was carried out in a reasonable manner, which arises at the second stage of the section 8 analysis (Edwards at paragraphs 35-38; see “(b) If so, was the interference reasonable?” below). Privacy as anonymity permits individuals to act in public places but to preserve freedom from identification and surveillance. ); Wakeling at paragraph 39). Rather, the manner search is generally reviewed after the fact. No definitive test exists for determining what constitutes a legal search; what constitutes a legal student search depends upon the context. The protection section 8 provides for privacy ― personal, territorial and informational — is essential not only to human dignity, but also to the functioning of our democratic society. It follows that there can only be a relatively low expectation of privacy in respect of premises or documents that are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course Thomson Newspapers; Fitzpatrick; White; Branch). Schenck v. United States 249 U.S. 47 (1919), Olmstead v. United States 277 U.S. 438 (1928), Brinegar v. United States 338 U.S. 160 (1949), Katz v. United States 389 U.S. 347 (1967), Bumper v. North Carolina 391 U.S. 543 (1968), United States v. United States District Court 407 U.S. 297 (1972), Schneckloth v. Bustamonte 412 U.S. 218 (1973), United States v. Calandra 414 U.S. 338 (1974), United States v. Kahn 415 U.S. 143 (1974), United States v. Matlock 415 U.S. 164 (1974), United States v. Watson 423 U.S. 411 (1976), South Dakota v. Opperman 428 U.S. 364 (1976), Nixon v. Administrator of General Services 433 U.S. 425 (1977), Zurcher v. Stanford Daily 436 U.S. 547 (1978), United States v. Mendenhall 446 U.S. 544 (1980), United States v. Ross 456 U.S. 798 (1982), Oliver v. United States 466 U.S. 170 (1984), United States v. Leon 468 U.S. 897 (1984), Massachusetts v. Sheppard 468 U.S. 981 (1984), California v. Ciraolo 476 U.S. 207 (1986), California v. Greenwood 486 U.S. 35 (1988), Skinner v. Railway Labor Executives' Association 489 U.S. 602 (1989), Michigan Dep't of State Police v. Sitz 496 U.S. 444 (1990). The latitude allowed police and other law enforcement agents in carrying out searches and seizures varies considerably from country country! Seizure page: 1 of 72 the intrusiveness of a search of two offices were into. Justified in searching a cell phone or similar device incidental to every arrest,... 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