Plain View Search and Seizure

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 92571)

General Principles

See also: Warrantless Seizure Under Section 489

A person has no reasonable expectation of privacy in what he knowingly exposes to the public or abandons in a public place.[1]

A peace officer may seize any evidence which he observes by use of one or more of his senses from a lawful vantage point.[2] If an officer is on a premises lawfully and observes items believed to be illegal, it is lawful for him to seize the items. [3]

For example, police may enter into a house on the basis of preserving property and the public peace, and if on entering they discover stolen property in the household, it may be considered evidence under the plain view doctrine. [4] Without a lawful search or lawful entrance, there can be no basis for the doctrine.[5]

Plain view observations of only segments of an item of evidence can be sufficient to establish grounds of arrest. The officer should not move obstructions from their view.[6]

  1. ↑ R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, per Binnie J, at para 40
    R v Boersma, 1994 CanLII 99 (SCC), 31 CR (4th) 386, per Iacobucci J
  2. ↑ R v Fitt, 1995 CanLII 4342 (NS C.A.), 96 CCC (3d) 341, per Hallett JA
    R v Lauda, 1998 CanLII 804, , [1998] 2 SCR 683, per Cory J
    R v Jackson, 2005 ABCA 430 (CanLII), 204 CCC (3d) 127, per curiam
  3. ↑ R v Shea, 1982 CanLII 2128 (ONSC), , 142 DLR (3d) 419, per Steele J - Court upholds seizure of drugs discovered during residential search
    R v Hébert, 1990 CanLII 3116 (QC CA), 60 CCC (3d) 422, per Brossard JA
    R v Grenier, 1991 CanLII 3657 (QC CA), 65 CCC (3d) 76, per curiam
  4. ↑ R v Dreysko, 1990 ABCA 309 (CanLII), 110 AR 317, per Kerans JA
    R v Hern, 1994 ABCA 65 (CanLII), 149 AR 75, per curiam
  5. ↑ R v Nielsen, 1988 CanLII 213, , 43 CCC (3d) 548, per Bayda CJ
  6. ↑ R v Bonilla-Perez, 2014 ONSC 2031 (CanLII), per Code J, at para 38
    R v Jones, 2011 ONCA 632 (CanLII), 278 CCC (3d) 157, per Blair JA, at paras 56-8{{{3}}} (Ont. C.A.)

Plain View Doctrine

There are generally three requirements for the plain view doctrine:[1]

  1. the police officer must lawfully make an initial intrusion or otherwise properly be "lawfully positioned" where he can view a particular area;
  2. the officer must discover incriminating evidence "inadvertently", which is to say, he may not know in advance the location of certain evidence and intend to seize it, relying on the plain view doctrine only as a pretext;
  3. it must be "immediately apparent" to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. These requirements having been met, when police officers lawfully engaged in an activity in a particular area perceive a suspicious object, they may seize it immediately:

It has been suggested that there is an additional step between the second and third step, requireing that "the evidence was in plain view in the sense that it was detected through the unaided use of the officer’s senses."[2]

The first step requires that the officer "must be lawfully in the place and acting lawfully in the exercise of police powers when the officer discovers the evidence."[3]

The requirement of "inadvertence" means that "it is not discovered by unauthorized search, but rather, because it is in the open when the police are lawfully in the place where it is visible, and lawfully exercising police duties". It does not apply where "officers discover the item through an unauthorized search."[4]

The requirement of "immediately apparent" means that the office has "probable cause to associate the discovered property with criminal activity."[5]

Plain View vs s. 489(2)

Under s. 489(2), where an officer is in the execution of their duties, may without a warrant, seize anything that the officer has reasonable grounds to believe is obtained by, used for, or will afford evidence towards an offence. This power is separate and apart from the common law doctrine of plain view seizure.[6]

Exceptions

The doctrine does not apply to circumstances where police rely upon third-party reports of the contents of places otherwise protected by privacy. For example, a security guard reporting the contents of a bus station locker to police.[7]

Exploratory vs Seizure Power

The doctrine is not an exploratory search power, but rather is a seizure power.[8]

Examples

Lands accessible to the public--i.e. "open fields"--do not have a reasonable expectation of privacy and so are not protected by the Charter where illegal items are found in it.[9] However, the "open fields" doctrine does not encompass all open air private properties.[10]

It does not stretch so far as to include a bag found in a locker at a public bus station.[11]

The plain view doctrine does not permit an officer to open a gun case to examine the contents of the case while assisting a sheriff in executing a valid eviction order.[12]

Police returning a stolen safe cannot be said to inadvertently discover documents found within that were immediately apparent to relate to tax fraud.[13]

Detecting a smell in the basement of a house an officer is lawfully in cannot justify entry into the basement without warrant on the basis of plain view.[14]

The doctrine cannot be used to avoid the requirement of reasonable and probable grounds to search or seize evidence.[15]

  1. ↑ R v Ruiz, 1991 CanLII 2410 (NB C.A.), 10 CR (4th) 34 (NBCA), per Hoyt JA (2:1)
    R v Belliveau and Losier, 1986 CanLII 88 (NB CA), 75 NBR (2d) 18, per Stratton CJ
    R v Jones, 2011 ONCA 632 (CanLII), 278 CCC (3d) 157, per Blair JA (3:0), at para 54 - describes 4 requirements
    R v Spindloe, 2001 SKCA 58 (CanLII), 154 CCC (3d) 8, per Jackson JA and Cameron JA, at paras 29 to 37
    R v Fawthrop, 2002 CanLII 45004 (ON CA), 166 CCC (3d) 97, per Borins JA (2:1), at paras 28 to 34
  2. ↑ R v Asp, 2008 BCSC 794 (CanLII), 234 CCC (3d) 273, per Arnold-Bailey J, aff’d on other grounds 2011 BCCA 433 (CanLII), per Frankel JA
  3. ↑ R v Gill, 2019 BCCA 260 (CanLII), per Griffin JA, at para 38
    R v Askov (1987), 60 CR (3d) 261(*no CanLII links) at 270
    R v Nielsen, 1988 CanLII 213 (SK CA), 66 Sask R 293 (CA), per Bayda CJ
    R v Buhay, 2003 SCC 30 (CanLII), [2003] 1 SCR 631, per Arbour J, at para 37
  4. ↑ Gill, supra, at para 52
  5. ↑ Gill, supra, at para 54
  6. ↑ R v Makhmudov, 2007 ABCA 248 (CanLII), 159 CRR (2d) 296, per curiam (3:0), at para 19
  7. ↑ Buhay, supra, per Arbour J, at para 37
  8. ↑ R v Smith, 1998 ABCA 418 (CanLII), 126 CCC (3d) 62, per Conrad JA
    R v Fawthrop, 2002 CanLII 45004 (ON CA), 166 CCC (3d) 97, per Borins JA (2:1), at para 30
    R v Spindloe, 2001 SKCA 58 (CanLII), 154 CCC (3d) 8, per Jackson JA
  9. ↑ R v Boersma, 1994 CanLII 99 (SCC), [1994] 2 SCR 488, per Iacobucci J (5:0)
    R v Patriquen, 1994 CanLII 3963, , (1994), 36 CR (4th) 363 (NSCA), per Roscoe JA (2:1); appeal dismissed on other grounds, 1995 CanLII 77, [1995] 4 SCR 42, per Lamer CJ (7:0)
  10. ↑ R v Kelly, 1999 CanLII 13120 (NB CA), 132 CCC (3d) 122, per Drapeau JA (3:0)
  11. ↑ R v Buhay, 2003 SCC 30 (CanLII), [2003] 1 SCR 631, per Arbour J (9:0)
  12. ↑ R v Stevens, 2011 ONCA 504 (CanLII), 274 CCC (3d) 353, per Armstrong JA (3:0)
  13. ↑ R v Law, 2002 SCC 10 (CanLII), [2002] 1 SCR 227, per Bastarache J (9:0)
  14. ↑ Smith, ibid., at paras 19 to 25
  15. ↑ Law, supra, at para 27

Officer Trespassing and Perimeter Searches

Observations should be made without violation of the law. Police making observations by trespassing at night is not permitted.[1]

An officer cannot use information gained through a perimeter search in an ITO.[2] Nor can they use information obtained by trespass.[3]

An officer may trespass upon a person's property for the purpose of communicating with the resident.[4] They may also approach the door, knock on it and speak to anyone who chooses to speak with them.[5]

  1. ↑ R v Hok, 2005 BCCA 132 (CanLII), 127 CRR (2d) 269, per Southin JA (3:0)
  2. ↑ R v Côté, 2011 SCC 46 (CanLII), [2011] 3 SCR 215, per Cromwell J (8:1), at paras 22, 26
    R v Azzolini, 1995 ABCA 119 (CanLII), per Stratton JA (3:0), at para 2
  3. ↑ e.g. R v Gendron and Greffard, 2004 BCPC 446 (CanLII), per Sperry J, at para 19
  4. ↑ R v Hyde, 2010 ABPC 30 (CanLII), 483 AR 381, per Barley J, at para 13
  5. ↑ Hyde, ibid., at para 13

Technological Detection

FLIR

The use of thermal imaging known as Forward Looking Infared Radar (FLIR) is not a form of search. The heat radiating from the house provides limited information about what is going on inside and virtually no information about the person core biographical information. The emanations exist on the outside of the house and so are exposed to the public.[1]

  1. ↑ see R v Tessling, 2004 SCC 67 (CanLII), [2004] 3 SCR 432, per Binnie J

Sniffer Dogs

See also: Reasonable Suspicion

The use of a sniffer dog amounts to a "search" in law. The use of the sniffer dog is almost exclusively in the realm of drug investigations.

A drug sniffer dog may be used to search on the basis of the lower standard of "reasonable suspicion."[1]

  1. ↑ R v Kang-Brown, 2008 SCC 18 (CanLII), [2008] 1 SCR 456, per LeBel J

X-Ray Machines

The police cannot seize property and then subject it to an x-ray scan without a warrant where it is not in the normal course of airport screening.[1]

  1. ↑ R v Fry, 1999 CanLII 18945 (NL CA), 142 CCC (3d) 166, per Green JA (2:1)

Police Invitees

When police are invited into a residence they are not engaged in a search. However if they begin to look around for evidence, particularly going into different rooms of the residence, that may about to a search.[1]

  1. ↑ R v Choudhry, 2009 CanLII 384 (ON SC), 183 CRR (2d) 352, per Pattillo J

Statutory Seizure on Plain View

See also: Warrantless Seizure Under Section 489
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