This was recently discussed in relation to the rules that apply in the US for searching individuals who have not (yet) been arrested.
http://www.theglobeandmail.com/servlet/ArticleNews/TPStory/LAC/20040724/SEARCH24//?query=pocket(you now have to register; feel free to make stuff up)
WINNIPEG -- Police must have good reasons to stop people on the street, the Supreme Court has ruled, and only a threat of physical harm can justify reaching into their pockets.
It's the first time that Canada's highest court has offered a judgment about whether police can search people who are detained but not arrested.
... Officers should have "reasonable grounds" to detain somebody, the judges wrote, such as a suspicion that they committed a specific crime. A pat-down is allowed only when the officer has a reason to think "his or her own safety, or the safety of others, is at risk."
Only if the officers notice something potentially dangerous -- such as a sharp object -- should they be allowed to go further and rifle through the person's pockets, the judges wrote.
"The search must be grounded in objectively discernible facts to prevent 'fishing expeditions'," Mr. Justice Frank Iacobucci wrote for the majority.
The case arose after an Aboriginal man (whom the Globe calls a "native" man, a term that is not acceptable in polite society in Canada but is apparently still common in Western Canada) was stopped by police in a "notoriously dangerous neighbourhood" in Winnipeg as they were responding to a call about a break-in. (He fit the description of the person who had committed the break-in.) In the course of patting him down, they felt something soft in his pocket and reached in to find a bag of pot.
The SCC threw out the evidence, on which the police had based a charge of possession for the purposes of trafficking.
I think that the SCC's requirements -- the last two sentences in the passage quoted above -- are perhaps a little more stringent than in the US, as I recall the discussion here.
This is the SCC decision, for anyone interested:
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc052.wpd.htmlFrom the headnote:
Per Iacobucci, Major, Binnie, LeBel and Fish JJ.: The police were entitled to detain M for investigative purposes and to conduct a pat-down search to ensure their safety, but the search of M's pockets was unjustified and the evidence discovered therein must be excluded.
Although there is no general power of detention for investigative purposes, police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances. These circumstances include the extent to which the interference with individual liberty is necessary to the performance of the officer's duty, to the liberty interfered with, and to the nature and extent of the interference. At a minimum, individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention. Investigative detentions carried out in accordance with the common law power recognized in this case will not infringe the detainee's rights under s. 9 of the Charter. They should be brief in duration, so compliance with s. 10(b) will not excuse prolonging, unduly and artificially, any such detention. Investigative detentions do not impose an obligation on the detained individual to answer questions posed by the police. Where a police officer has reasonable grounds to believe that his safety or the safety of others is at risk, the officer may engage in a protective pat-down search of the detained individual. The investigative detention and protective search power must be distinguished from an arrest and the incidental power to search on arrest.
In this case, the seizure of the marijuana contravened s. 8 of the Charter. The officers had reasonable grounds to detain M and to conduct a protective search, but no reasonable basis for reaching into M's pocket. This more intrusive part of the search was an unreasonable violation of M's reasonable expectation of privacy in respect of the contents of his pockets. Moreover, the Crown has not shown on the balance of probabilities that the search was carried out in a reasonable manner.
The evidence should be excluded under s. 24(2) of the Charter.
The relevant sections of the Canadian constitution are:
8. Everyone has the right to be secure against unreasonable search or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; ...
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
