Criminal law

Drugs

What’s involved in a "police search"?

In practical terms, a search is a method used by police officers to obtain concrete evidence of an offence. It allows them to enter a given location (house, apartment, car, etc.) in order to search it and seize items that might relate to a crime. Police searches can be carried out in a specific location or on an individual. Both types of searches have the same objective.

In some situations, police officers are allowed to use force in order to carry out a search. However, they are not supposed to use too much force if they don’t have a good reason for doing so. For example, it would have been considered excessive for the police to have violently knocked down Rachel’s door in order to enter her apartment.

When the police are ready to search a location, they have to inform the occupants of their presence and indicate that they are police officers before entering. They also have to give the occupants a chance to open the door. Once inside, the police officers must show their search warrant. If these rules are not followed at the time of the search, a judge may decide later on that excessive force was used and rule that the search was illegal.

You should note that the police are allowed to tear out the floor, the walls or the ceiling, or even break the pipes, in order to find drugs. But the principle is the same: the force used must be necessary under the circumstances. Also, the warrant must allow for it.

Can the police carry out a search in any way they please?

No. The police have to obtain a judge’s permission before they can perform a search. Why? Because the right to liberty found in the Canadian Charter of Rights and Freedoms protects you against unreasonable police intrusion in your life.

When the police arrive at Rachel’s apartment, they have a document called a "search warrant". This document sets out the following: the date, the names of the officers authorized to carry out the search, and the address where they are permitted to search. It also indicates the kinds of objects that the police are looking for and the offence for which the search has been authorized. Usually, a search must be carried out between 6:00 a.m. and 9:00 p.m. Overnight searches must be authorized by a judge.

When necessary, the police may obtain a warrant by phone or by another method of communication.

In exceptional situations, police may carry out a search without having first obtained a search warrant from a judge.

Can the police seize whatever they like?

No. If the police completely empty out Rachel’s apartment, they would be going beyond the limits of their search warrant. Chances are that a judge would later rule that the search was abusive. Police officers are generally only allowed to seize items indicated in the search warrant.

Of course, the objects that are to be seized are not always described in great detail in the warrant. When it comes to drug offences, the search warrant generally only indicates the type of narcotic that is to be seized. However, the police are allowed to seize items related to the charges.

In Rachel’s case, this means that the police are allowed to take the scale, receipt book, Ziploc bags and cash they find, even though these items are not specifically described in the search warrant.

Are the police allowed to search Rachel and her boyfriend?

Generally, when police search a place, they are not allowed to search the people they find there. However, the police have greater power when their search is targeted at finding drugs.

The law states that police officers who have a warrant to search for drugs in a given location can also search the people on the premises if they believe they have drugs on them. In addition, when police search a place, they often arrest the people on the premises. And once they’ve arrested someone, the officers have the right to perform a body search on that person. So this means that the police would be allowed to search both Rachel and her boyfriend. To find out more about body searches, read the Infosheet entitled Body Searches.

What happens to the seized items?

It all depends on the type of object and to whom it belongs. When it comes to illegal substances, they’re obviously not returned to their owners – so Rachel and her boyfriend can give up any hope of getting the drugs back.

The same may also be true for the cash that was seized. If the judge is convinced that the money comes from selling drugs, Rachel and her boyfriend won’t get it back.

However, if Rachel’s mother-in-law wants to get back a suitcase and a small dresser that she lent to her son, she can apply to the court for permission. The judge will order that the objects be returned to the mother-in-law – but only if he is convinced that she is the rightful owner and that she was not involved in drug trafficking with Rachel and her boyfriend.