Romaniuk's
Search Warrants Considered

Pat Down
Basics

• Frisk searches of persons after lawful arrest are constitutional
  [Debot, K.J.; SCC].
  Even where there was a violent take down
  [Collins, R.; SCC].
• However: "Any search incidental to the limited police power of investigative detention described above is necessarily a warrantless search {para 36}
  [Mann, P.H.; SCC]."
• "The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. ... The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition {paras 40 and 43}
  [Mann, P.H.; SCC]."
• "Furthermore, there were reasonable grounds for a protective [pat down] search of the appellant. There was a logical possibility that the appellant, suspected on reasonable grounds of having recently committed a break-and-enter, was in possession of break-and-enter tools, which could be used as weapons. The encounter also occurred just after midnight and there were no other people in the area. On balance, the officer was justified in conducting a pat-down search for protective purposes." However upon feeling a soft object in the accused's pocket, the officer reached into it and pulled out a bag of marijuana. A soft object is not a weapon. The accused had a privacy right in regard to anything inside his pockets. That went "beyond a pat down search for security reasons." Hence the evidence was excluded {paras 48-50}
  [Mann, P.H.; SCC].
• "However, a pat down search for firearms may not be used as a cloak, simulacra or other after the fact justification for an evidentiary fishing expedition uniformed by a reasonably founded and probative suspicion as to the presence of a firearm, a point emphasized by MacPherson J.A. But where such suspicion is present and justified, as it was here, such a search is permissible {second para 62}
  [Jones, D.A.; OSCJ]." Also review warrantless pretextual searches.
• "At trial and at the time he arrested Mr. Martel, Cst. LaForest had an erroneous understanding of the limited scope and purpose of his power to search in circumstances of investigative detention. His testimony revealed that he believed, wrongly, that a person under investigative detention can be searched for reasons of officer safety and to obtain evidence probative of the commission of a criminal offence. Of course, several years before the offence date in this case the Supreme Court of Canada had held, in Mann, P.H.
  that searches in circumstances of investigative detention, to be lawful, must be limited to those that are conducted to ensure officer safety. The Crown does not dispute that Cst. LaForest had a mistaken belief about the scope and purpose of a police officer’s search powers in circumstances of investigative detention (for that is indisputable) {paras 19-20}
  [Martel, J.L.F.; BCPC]."
• “A police officer arrested the accused without a warrant and, following a search incidental to arrest, found a bag of crack in the accused’s pocket. The arresting officer did not investigate the accused’s claim that he was the brother of the person sought by the arrest warrant at the time of the arrest. At the police station, however, the accused was confirmed not to be the person sought by the warrant. The trial judge acquitted the accused on a charge of possession of cocaine for the purpose of trafficking, finding that, despite the resemblance between the accused and his brother, the officer did not have objective grounds for the arrest because he had not investigated the accused’s claim of mistaken identity at the time of the arrest. She concluded that the arrest was illegal, the subsequent search was unreasonable and excluded the evidence {headnote}." The SCC, in a majority decision, agreed with the trial judges logic in excluding the evidence too with the comment "… the trial judge concluded that the reasonable grounds required under s. 495 had not been made out in the particular circumstances of this case. And her conclusion in this regard rests essentially on an appreciation of the evidence before her: The trial judge’s reasons, delivered orally, explain in detail why she found the evidence of the arresting officer inconsistent, contradictory and wanting as to the circumstances surrounding the respondent’s arrest {para 3}
  [Burke, A.; SCC]."
  Quoting the trial judge: “The Court considers that the officer was obliged, on the face of the protest and information given by the accused, to proceed to a verification. Despite the resemblance as he testified, it was dark when he attempted to arrest the person on the previous occasion, and he could not easily observe distinguishing marks. The attitude of arresting a person without further verification as to address, phone number… (inaudible)… acquaintances, previous contact with the police on other matters appears capricious. […] that the officer had objective grounds for the arrest. He did not investigate when the identification of the accused was contested, even though he was told that he person being sought after by the warrant was the brother. The contradictions between his evidence at trial and at preliminary inquiry do not reinforce his reasons for arresting the accused; his subjective belief was not sufficient {para 53}.” Without a subjective reason for the arrest – the officer should not have conducted the search, hence the evidence was excluded
  [Burke, A.; QCA]."
• "There was no evidence that the Applicant consented to this search and there was no articulation what so ever of any officer safety issue. The convenience of asserting officer safety issues cannot be utilized to justify personal searches absent some evidentiary foundation. Therefore this search was not authorized by law {para 68}." Hence the evidence gathered was excluded
  [Hoang, T.T.J.; BCPC].
• Also review searches incidental to lawful arrest.

Subsection continues on
Page PR 54