Search Incident to Arrest

From Criminal Law Notebook
This page was last substantively updated or reviewed October 2022. (Rev. # 96692)

General Principles

See also Warrantless Arrests for details on arrest powers
Common Law Rule for Search

The common law creates an exception to the rule that a warrantless search is prima facie unreasonable when the search is incidental to arrest (SITA).[1] This exception is limited by courts to protect the individual's privacy rights.[2]

An officer undertaking a search incident to arrest does not need to have reasonable and probable grounds.[3] It is only necessary that the officer has "some reasonable basis" or "reasonable prospect" to believe that evidence supporting the offence will be found.[4]

The accused generally cannot claim an expectation of privacy with respect to his personal belongings inspected once they are lawfully seized incident to arrest.[5]

There is no "blanket authority" to search a car incident to arrest.[6]

Authority Arises from Arrest Power

The power does not arise from a reduced expectation of privacy of the arrested person. Rather it comes from "the need for the authorities to gain control of the situation and the need to obtain information."[7]

The lawfulness of a search incident to arrest flows from the lawfulness of the arrest itself and so does not require independent reasonable grounds. [8]

This common law power is an exception to the usual requirement of "reasonable grounds" for a search. The Officer must subjectively believe that person is committing or has committed an indictable offence and their belief is based on objectively reasonable grounds.[9]

It is said that "[i]f the arrest is unlawful, the search is also unlawful”.[10]

Valid Objective

The common law power is discretionary to the officer based on whether the law can be applied safely and effectively without a search.[11]

The search must be for a valid objective in the administration of justice, such as the discovery of things that may be a threat to the safety of the officer, accused, or public, items that may facilitate escape, or items that may be evidence to the offence for which he was arrested.[12]

The "primary" purposes of search incident to arrest are:[13]

  1. to ensure the safety of the police and the public; [14]
  2. to protect evidence;
  3. to discover evidence

There is an open list of legitimate purposes. However, a valid purpose must be "truly incidental" to the arrest.[15]

Where the purpose is to discover evidence, there must be "a reasonable prospect the evidence will relate to the offence for which the person is arrested."[16]

The police conducting the search "subjectively must have a valid purpose in mind, the reasonableness of which must be considered objectively."[17]

The decision to search must be "reasonably necessary in light of the totality of the circumstances." It cannot be on vague concerns for safety.[18]

The search should not be used "to intimidate, ridicule or pressure the accused in order to obtain admissions." It should not "be conducted in an abusive fashion and, in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation." [19]

Assessment of Valid Searches

The assessment of a search must consider:[20]

  1. the purpose of the search;
  2. whether that purpose was a valid law enforcement purpose that was connected to the arrest; and
  3. whether the purpose identified for the search was objectively reasonable in the circumstances.
Seizure of Evidence upon Discovery

A peace officer may also take property from a person which the officer reasonably believes is connected with the offence charged, or which may be used as evidence against the person arrested. [21] This power is derived from the common law. [22]

The police are obliged to safeguard items they have seized.[23]

Level of Interference

Searches that have greater impact to "human dignity, serious interference with bodily integrity and significant invasions of privacy require a higher degree justification for the search and seizure."[24]

The use of "physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation."[25]

Timing of Search

The timing of the search does not need to be immediately after the arrest is affected, it should be done "within a reasonable period of time after the arrest."[26] A "substantial delay" will permit the making of an inference that the search was not sufficiently connected to the arrest.[27]

Depending on the circumstances, hours may pass and the search may still be lawful.[28]

Just because there is time to obtain a warrant is not determinative of whether a warrant is needed.[29]

  1. ↑ Cloutier v Langlois, 1990 CanLII 122 (SCC), [1990] 1 SCR 158, per L'Heureux-Dube J - first case recognizing an exception to warrant requirement
    R v Stillman, 1997 CanLII 384 (SCC), 5 C. R. (5th) 1 (SCC), per Cory J
    R v Golden, 2001 SCC 83 (CanLII), [2001] 3 SCR 679, per Iacobucci and Arbour JJ, at para 23
    Compare with US perspective: United States v Robinson, 414 U.S. 218 (1973)
    Golden, ibid., at p. 488
  2. ↑ R v Hiscoe, 2013 NSCA 48 (CanLII), 297 CCC (3d) 35, per Oland JA (3:0), at para 33
  3. ↑ R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, per Lamer CJ, at paras 13, 17
  4. ↑ Caslake, supra, at paras 20, 22 ("some reasonable prospect of securing evidence of the offence for which the accused is being arrested")
    Hiscoe, supra, at para 38 ("reasonable basis")
  5. ↑ R v Blais, 2004 CanLII 8466 (ON CA), 182 CCC (3d) 39, per Rosenberg JA (3:0)
  6. ↑ R v Bulmer, 2005 SKCA 90 (CanLII), 198 CCC (3d) 363, per Jackson JA (3:0)
  7. ↑ Caslake, supra, at para 17
  8. ↑ Caslake, supra, at para 13
  9. ↑ R v Rajaratnam, 2006 ABCA 333 (CanLII), 214 CCC (3d) 547, per curiam, at para 20
  10. ↑ R v Mohamad, 2004 CanLII 9378 (ON CA), 69 OR (3d) 481, per Cronk JA (3:0) , at para 28
  11. ↑ Stillman, supra, at p. 278 ("This power does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search.")
  12. ↑ Stillman, supra ("The search must be for a valid objective ..., such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused.")
    Caslake, supra, at para 22
  13. ↑ Caslake, supra, at paras 19 to 20
    Cloutier v Langlois, 1990 CanLII 122 (SCC), [1990] 1 SCR 158, per L'Heureux-Dubé J, at pp. 182
    R v Stairs, 2020 ONCA 678 (CanLII), per Fairburn ACJ, at para 51
    see also R v Fearon, 2014 SCC 77 (CanLII), [2014] 3 SCR 621, per Cromwell J (4:3) - modifies "valid law enforcement purposes" for cell searches
  14. ↑ see also Cloutier, supra
  15. ↑ Caslake, supra, at paras 10, 20, 25
  16. ↑ Caslake, supra, at para 22
  17. ↑ R v Majedi (M.F.), 2009 BCCA 276 (CanLII), 192 CRR (2d) 288, per Chiasson JA (3:0), at para 19 - summarizing Caslake
  18. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J (5:2), at para 40
  19. ↑ Stillman, supra
  20. ↑ Stairs, supra, at para 51 R v Santana, 2020 ONCA 365 (CanLII), per Doherty JA, at paras 25 to 26
  21. ↑ R v Morrison, 1987 CanLII 182 (ON CA), 35 CCC (3d) 437, per Dubin JA
    see also s. 489
  22. ↑ Cloutier v Langlois, supra
  23. ↑ R v Strilec, 2010 BCCA 198 (CanLII), 256 CCC (3d) 403, per Ryan JA (3:0)
    R v Wint, 2009 ONCA 52 (CanLII), 184 CRR (2d) 57, per curiam (3:0)
  24. ↑ Hiscoe, supra, at para 37
  25. ↑ Stillman, supra, at para 158
  26. ↑ e.g. Caslake, supra, at para 24 - search of vehicle for inventory purposes occurred 6 hours after arrest was unlawful. ("There is no need to set a firm deadline on the amount of time that may elapse before the search can no longer said to be incidental to arrest. As a general rule, searches that are truly incidental to arrest will usually occur within a reasonable period of time after the arrest")
    R v Fearon, 2014 SCC 77 (CanLII), [2014] 3 SCR 621, per Cromwell J (4:3)
  27. ↑ Caslake, supra, at para 24 ("A substantial delay does not mean that the search is automatically unlawful, but it may cause the court to draw an inference that the search is not sufficiently connected to the arrest. Naturally, the strength of the inference will depend on the length of the delay, and can be defeated by a reasonable explanation for the delay.")
  28. ↑ Lawful:
    R v Farmakis, 2011 NSSC 101 (CanLII), 976 APR 58, per Duncan JA, at paras 98 to 112
    R v Nolet, 2010 SCC 24 (CanLII), [2010] 1 SCR 851, per Binnie J, at para 50
    R v Washington, 2007 BCCA 540 (CanLII), 227 CCC (3d) 214, per Ryan JA (2:1), at para 97, denied leave [2007] SCCA No 570
    R v Eden and Perry, 2004 NBQB 338 (CanLII), 727 APR 180, per Grant J, affirmed on other grounds [2005] NBJ No 472 (CA)
    R v Clarke, 2003 CanLII 64244 (ONSC), [2003] OJ No 3884, per Ferrier J, at paras 217 to 226
    R v Miller, 1987 CanLII 4416 (ON CA), [1987] OJ No 989 (CA), per Goodman JA (3:0), at para 25
    Unlawful:
    R v Hiscoe, 2013 NSCA 48 (CanLII), 297 CCC (3d) 35, per Oland JA - one month before searching cell phone
    R v DJS, [2002] BCJ No 1198 (Sup. Ct.)(*no CanLII links) , at paras 29-30
    R v MC, [1994] OJ No 3181 (Gen. Div.)(*no CanLII links) , at para 19
  29. ↑ R v Sinclair, 2005 MBCA 41 (CanLII), 64 WCB (2d) 563, per Freedman JA, at para 18

Person Arrested

Searches conducted in the normal practice of creating an inventory of items on a person who is being lodged in cells for an offence is a permissible search.[1]

Searches that intrude on "bodily integrity or human dignity" will be subject to a higher standard for warrantless search.[2]

U.S. case law has developed doctrine that will often permit search of containers in possession or control of the person.[3]

  1. ↑ R v Unaru, [1994] BCJ No 1731(*no CanLII links) at 15
  2. ↑ R v Golden, 2001 SCC 83 (CanLII), [2001] 3 SCR 679, per Iacobucci and Arbour JJ, at para 99
    e.g. see Strip Searches below
  3. ↑ New York v Belton, U.S. 454 (1981) - in the context of search of a vehicle
    United States v Chadwick, 433 U.S. 1 (1977) - search of footlocker denied

Strip Searches

See also: Manner of Search#Strip Searches

Taking Bodily Samples

See also: Seizure of Bodily Samples

The higher standard used in strip searches will equally apply to the taking of hair samples and cheek swabs.[1]

Penile Swabs

There is a divide on whether a penile swab is ever available without a warrant.[2]

In Alberta, a warrantless search by way of a penile swab requires exigent circumstances.[3] It has been suggested the circumstances that will permit such a search "will rarely arise."[4]

A penile swab is considered more intrusive than a strip search. It is closer to taking a bodily sample of a suspect.[5]

The "non-consensual interferences with the body are experienced as a violation of human dignity."[6]

Evidence establishing that the time necessary to apply for a warrant would result in evidence significantly deteriorating or disappearing that award will be required.[7]

  1. ↑ R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607, per Cory J
    R v Golden, 2001 SCC 83 (CanLII), [2001] 3 SCR 679, per Iacobucci and Arbour JJ (5:4), at para 99
  2. ↑ Warrant Only: R v Saeed, 2014 ABCA 238 (CanLII), 315 CCC (3d) 127, per Watson JA
    R v Laporte, 2012 MBQB 227 (CanLII), 283 Man R (2d) 9, per Schulman J
    No Warrant Needed: Saeed, supra
    R v Amey, 2013 ONSC 5108 (CanLII), 108 WCB (2d) 776, per Gilmore J
    R v Harasemow, 2014 BCSC 2287 (CanLII), 16 CR (7th) 32, per McKinnon J
  3. ↑ Saeed, supra
  4. ↑ Saeed, supra, at para 50
  5. ↑ Saeed, supra
  6. ↑ Saeed, supra
  7. ↑ Saeed, supra, at para 62

Residences

See also: Warrantless Entry into Dwellings in Exigent Circumstances and Entry into Place to Execute an Arrest Warrant

The power to search a person on arrest will generally extend to the search of the premises wherein he was found, which was under his control.[1]

Section 529.3 authorizes warrantless entry into a residence.[2]

A warrantless arrest of an individual at their front door may, in certain circumstances, permit the officers to perform a sweep of the residence for the presence of other people and to preserve evidence.[3]

  1. ↑ R v Rao, 1984 CanLII 2184 (ON CA), 12 CCC (3d) 97, per Martin JA (5:0)
    R v Plourde, 1985 CanLII 3513 (QC CA), 23 CCC (3d) 463, per Dube JA (3:0) - search of residence upon arresting accused for sex assault
  2. ↑ see Warrantless Entry into Dwellings in Exigent Circumstances
  3. ↑ R v Ewart, 1995 CanLII 759 (BC CA), 96 WAC 70, per Hinds JA (3:0) - accused arrested at front door for drug offence
    R v Luu, 2006 BCCA 73 (CanLII), 207 CCC (3d) 175, per Smith JA (3:0)
    R v RST, 2007 MBQB 166 (CanLII), 158 CRR (2d) 229, per Scurfield J

Motor Vehicles

The common law power of police to search incident to arrest can include the accused's motor vehicle.[1] An officer may search a vehicle incidental to arrest where it is for a valid purpose related to the offence and where the officer reasonably believed that the search would be only to achieved that legitimate purpose.[2] There is no heightened expectation of privacy justifying an exemption from the usual common law principles of search incident to arrest.[3] For example, a search of a briefcase found in a stolen vehicle incident to arrest is justified.[4] The presumption of unreasonableness of a warrantless search is rebutted upon proof that the arrest was lawful and the search was reasonable.[5]

Where the two accused are arrested in a vehicle for breaching no contact conditions, that alone is not sufficient for the officer to have reasonable and probable grounds to search the vehicle incident to arrest.[6]

The removal of panels from the vehicle may, in limited cases, be justified as a search incident to arrest.[7]

A search of a motor vehicle in relation to an investigation for breach of recognizance may generally not be valid.[8]

Vehicle Search Incident to Arrest Warrant

A search of a vehicle incident to the execution of an arrest warrant, as opposed to a search pursuant to an investigation, will usually not be permissible and would violate s. 8 of the Charter.[9]

Vehicle Seizure

Where the police seize a vehicle for the purpose of removing it from the road, there is a lessened expectation of privacy. Thus, any contents of the vehicle in plain view upon entering the vehicle can be seized.[10]

Requesting Driver's Licence

A request by a police officer for a driver's licence and insurance is not a search.[11]

  1. ↑ R v Polashek, 1999 CanLII 3714 (ON CA), 134 CCC (3d) 187, per Rosenberg JA (3:0)
    R v Alkins, 2007 ONCA 264 (CanLII), 218 CCC (3d) 97, per MacPherson JA (3:0)
  2. ↑ R v Parchment, 2007 BCCA 326 (CanLII), 74 WCB (2d) 6, per Smith JA (3:0)
    Caslake, supra, at para 19
  3. ↑ R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, per Lamer CJ (7:0)
    R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607, per Cory J (4:3)
  4. ↑ R v Mohamad, 2004 CanLII 9378 (ON CA), 182 CCC (3d) 97, per Cronk JA (3:0)
  5. ↑ R v Klimchuk, 1991 CanLII 3958 (BCCA), 67 CCC (3d) 385, per Wood JA (2:1)
  6. ↑ R v Tran, 2003 ABPC 132 (CanLII), per Lefever J
  7. ↑ R v Smellie, 1994 CanLII 1612 (BC CA), 95 CCC (3d) 9, per Ryan JA (3:0)
  8. ↑ R v Majedi, 2009 BCCA 276 (CanLII), 192 CRR (2d) 288, per Chiasson JA (3:0), at para 20
  9. ↑ R v Forester, 2009 ABPC 278 (CanLII), 481 AR 323, per Barley J – Arrest warrant related to charge of assault causing bodily harm
  10. ↑ R v Nicolisi, 1998 CanLII 2006 (ON CA), 127 CCC (3d) 176, per Ryan JA (3:0)
  11. ↑ R v Hufsky, 1988 CanLII 72 (SCC), [1988] 1 SCR 621, per Le Dain J (7:0),, at p. 637

Inventory Searches

When a vehicle is impounded lawfully, the officers have a duty to keep the property safe and take reasonable steps to do so. This will require entering the vehicle to itemize the property of apparent value. [1]

An inventory search "per se" does not amount to a "valid objective" in criminal law that can produce evidence that is admissible at a criminal trial.[2]

However, provincial motor vehicle legislation may permit inventory searches under the authority to impound a vehicle.[3] This authority extends to permit police to look inside bags.[4]

  1. ↑ R v Nicolosi, 1998 CanLII 2006 (ON CA), 127 CCC (3d) 176, per Ryan JA (3:0), at para 30
  2. ↑ R v Nolet, 2010 SCC 24 (CanLII), [2010] 1 SCR 851, per Binnie J, at para 53
  3. ↑ Nicolosi, supra
    R v Strilec, 2010 BCCA 198 (CanLII), 256 CCC (3d) 403, per Ryan JA
  4. ↑ R v Wint, 2009 ONCA 52 (CanLII), 184 CRR (2d) 57, per curiam (3:0)

Passengers of Vehicles

A passenger in a motor vehicle generally does not have a reasonable expectation of privacy.[1] However, there is an expectation of privacy in the limited area underneath the passenger.[2]

  1. ↑ R v Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341, per Cory J and Sopinka J (7:2)
  2. ↑ R v Dreyer, 2008 BCCA 89 (CanLII), 229 CCC (3d) 281, per Donald JA (3:0)

Trunks and Bags

An officer performing a vehicle stop and begins an impaired driving investigation may use the observations of the driver's impairment to search trunk and bags found within the car for the purpose of "locat[ing] evidence helpful to the impaired driving offence."[1]

In certain circumstances, police may search a vehicle to determine whether there are weapons found in the vehicle.[2]


  1. ↑ R v Pearson, 2017 ONCA 389 (CanLII), 348 CCC (3d) 277, per Pardu JA leave ref'd [2017] SCCA No 465, at paras 23 to 26
  2. ↑ R v Majedi, 2009 BCCA 276 (CanLII), 192 CRR (2d) 288, per Chiasson JA (3:0) -- incident to arrest

Computers, Cell Phones and Digital Storage

See also Reasonable Expectation of Privacy#Computers and Electronic Devices

A warrantless search of a cell phone incident to arrest is permitted where:[1]

  1. The arrest was lawful;
  2. The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:
    1. Protecting the police, the accused, or the public;
    2. Preserving evidence; or
    3. Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;
  3. The nature and the extent of the search are tailored to the purpose of the search; and
  4. The police take detailed notes of what they have examined on the device and how it was searched.

The search not permitted when it is in relation to a "minor offence."[2]

Truly Incidental

The requirement that the purpose be "truly incidental" asks for a strict interpretation of the purpose of the search. The search must be articulated as connecting the "particular arrest for the particular offence". It cannot be generalized.[3]

Timing of Search

Searches should be done "promptly upon making an arrest."[4]

Discovery of Evidence

The "valid reasons" relating to the discovery of evidence should "not routinely permitted simply for the purpose of discovering additional evidence."[5] It must serve an "immediate investigative purpose."[6] The officer must be able to explain "why it was not practical..., in all the circumstances of the investigation, to postpone the search until they could obtain a warrant." [7]

Detailed Notes

The requirement for detailed notes will vary on the type of device examined. A device such as a USB key that contains a "narrower" range of information will impose less obligation on the officer.[8]

  1. ↑ R v Fearon, 2014 SCC 77 (CanLII), [2014] 3 SCR 621, per Cromwell J (4:3), at para 83
  2. ↑ Fearon, ibid. ("a search of a cell phone incident to arrest will generally not be justified in relation to minor offences")
  3. ↑ Fearon, ibid., at para 76
  4. ↑ Fearon, ibid., at para 16
  5. ↑ Fearon, ibid., at para 80
  6. ↑ Fearon, ibid., at para 80
  7. ↑ Fearon, ibid., at para 80
  8. ↑ R v Balendra, 2019 ONCA 68 (CanLII), per Harvison Young JA, at para 52

Examples

Storage Devices

A search memory stick without a warrant upon arrest for credit card fraud has been found to violate s. 8.[1]

  1. ↑ R v Tuduce, 2011 ONSC 2749 (CanLII), per Taylor J

Seizure Incident to Arrest

See Also

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