When is a search warrant not necessary
In order to get a search warrant, the officer must prove probable cause before a magistrate or a judge. Probable cause may be based on direct information or hearsay. Hearsay information can be acquired by a telephone conversation or a confidential informant. The standard of proof necessary for a search warrant is lower than that needed in court for a conviction.
The idea is that evidence that can be gathered without a warrant might not be enough to convict someone, but it may be enough to show that more evidence could be gathered that may lead to a conviction. There are exceptions where a search warrant is not required to search a person or property, such as if voluntary consent is given.
If evidence is in plain view, a search warrant is not necessary.
Home inspections, searches, or seizures shall not be admissible save in the cases and manners complying with measures to safeguard personal liberty. Controls and inspections for reason of public health and safety, or for economic and fiscal purposes, shall be regulated by appropriate laws. The right to be free from unreasonable search and seizure is well recognised by the international human rights community.
While the NZBORA establishes the overall right to be free from unreasonable search and seizure the Search and Surveillance Act provides the statutory framework for the practical application of the law in this area in New Zealand.
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Historically, English common law made use of a number of different types of legal writs to effect seizures for various reasons. For example, a writ of arrestandis bonis ne dissipentur provided for the seizure of goods when it was found likely they would not be properly cared for during a court case to settle ownership. The text of the amendment is brief, and most of the law determining what constitutes an unlawful search and seizure is found in court rulings. The brief definitions of the terms "search" and "seizure" was concisely summarized in United States v.
Jacobsen , which said that the Fourth Amendment:. A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A seizure of property occurs where there is some meaningful interference with an individual's possessory interests in that property. The general rule under the United States Constitution is that a valid warrant is required for a search. For instance, the owner of the property in question may consent to the search. The consent must be voluntary, but there is no clear test to determine whether or not it is; rather, a court will consider the " totality of the circumstances " in assessing whether consent was voluntary.
Police officers are not technically required to advise a suspect that he may refuse, however this policy depends on the specific rules of the department. There are also some circumstances in which a third party who has equal control, i. Another example of unreasonable search and seizure is in the court case Mapp v.
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When an individual does not possess a " reasonable expectation of privacy " that society is willing to acknowledge in a particular piece of property, any interference by the government with regard to that property is not considered a search for Fourth Amendment purposes, and a warrant is never required. For example, courts have found that a person does not possess a reasonable expectation of privacy in information transferred to a third party, such as writing on the outside of an envelope sent through the mail or left for pick-up in an area where others might view it. While that does not mean that the person has no reasonable expectation of privacy in the contents of that envelope, the Court has held that one does not possess a reasonable expectation of privacy that society is willing to acknowledge in the contents of garbage left outside the curtilage of a home.
There is also a lowered expectation of privacy inside of motor vehicles. New Hampshire dictates that "the word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears.
Courts have also established an " exigent circumstances " exception to the warrant requirement. Typically, this is because police have a reasonable belief that evidence is in imminent danger of being removed or destroyed, but there is still a probable cause requirement. Exigent circumstances may also exist where there is a continuing danger, or where officers have a reasonable belief that people in need of assistance are present. This includes when the police are in 'hot pursuit of a fleeing felon.
Certain limited searches are also allowed during an investigatory stop or incident to an arrest. These searches may be referenced as refined searches. In the case of garbage, for instance, abandonment will be a function of both location where the garbage was left and the intention of the person abandoning the garbage Patrick at paragraphs , Discarded bodily samples cannot be said to have been voluntarily abandoned if the person concerned is in custody or detained Stillman at paragraphs An item that is stolen is not, by virtue of that fact alone, abandoned.
Although the owner would reasonably expect a certain degree of intrusion into the stolen item e. Although the reasonable expectation of privacy is not limited to trust-like, confidential, or therapeutic relationships, the nature of the relationship is a relevant part of the overall context Quesnelle at paragraph 27; see also Plant at page ; Tessling at paragraph The doctor-patient relationship is characterized by a high degree of confidentiality. Bodily samples collected for medical purposes are subject to a duty to respect the privacy and dignity of the person and cannot generally be shared with police absent prior judicial authorization Dyment at paragraphs ; Colarusso.
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A client has a reasonable expectation of privacy in all documents in the possession of his or her lawyer, which constitute information that the lawyer is ethically required to keep confidential Lavallee at paragraph 35; Chambre des notaires at paragraph Records that are subject to inspection by members of the public at large cannot be said to be subject to an obligation of confidentiality Plant at paragraph The contractual and statutory framework, including any terms or provisions governing the disclosure of the information, may be relevant to whether there is a reasonable expectation of privacy.
When dealing with a contract of adhesion in the context of a consumer relationship, caution must be exercised in determining the impact of the contract on the reasonableness of an expectation of privacy Spencer at paragraph 54; Gomboc at paragraphs , , However, adults cannot reasonably expect privacy online with children they do not know.
Whether the same conclusion would apply to other types of relationships remains to be determined in light of the nature of the relationship in question and the circumstances of the alleged search Mills at paragraph 26; see also the minority reasons of Karakatsanis J.
In the context of personal privacy, the level of invasiveness is a function of the circumstances, including the duration of the search technique, whether there is penetration into the body, whether the technique causes pain or discomfort, and whether the search involves the removal of substances from the body Stillman at paragraphs ; R. Beare; R. Higgins ,  2 S. Saeed ,  1 S.
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Langlois ,  1 S. A strip search, however sensitively conducted, is highly intrusive. The most intrusive type of search is a body cavity search Golden ; Saeed. The forcible taking of bodily samples and dental impressions is highly invasive of personal privacy Pohoretsky at ; Dyment at ; Colarusso at 53; Stillman at paragraph 42; R. Grant ,  2 S. In general, police must have either consent or a warrant to seize such samples or impressions Stillman. The techniques used buccal swabs, blood samples obtained by pricking the surface of the skin, and the plucking of hairs are not particularly invasive in the physical sense S.
Fingerprinting incident to lawful arrest is relatively non-intrusive Beare at page ; Grant at paragraph In the absence of lawful arrest, however, individuals retain a high expectation of privacy in their fingerprints Feeney at paragraph In respect of individuals convicted of serious offences, the identifying information derived from DNA sampling is analogous to fingerprints, photographs and other non-intrusive identification measures Rodgers at paragraphs The taking of a breath sample is relatively non-intrusive Goodwin at paragraphs 51, 76; Grant at paragraph Drivers nevertheless retain some expectation of privacy — albeit a diminished one — in their breath Goodwin at paragraph Although the accused is required to expose a private area of his body to conduct the swab, the procedure is as a general rule quick, painless, and not penetrative.
In the context of technological surveillance tools , the sophistication of the technology involved, in terms of the quality of the information it yields, will be an important factor. Devices used to sense heat emanations from a house are sufficiently crude at this stage of their development that the information gathered by them is non-intrusive and mundane Tessling at paragraphs Information obtained by tracking devices left in cars is, though relatively crude, sufficiently intrusive so as to infringe a reasonable expectation of privacy Wise at The intrusion into our privacy that occurs when a person hears our words or observes us in passing is fundamentally different than the intrusion that occurs when the same person simultaneously makes a permanent recording of us and our activities.
A visual recording may be able to capture a level of detail that the human eye cannot, and can do so in a permanent form that can be accessed, edited, manipulated and studied by the person who created the recording and that can be shared with others. It does not follow, however, that visual recordings in public places will always interfere with reasonable privacy expectations Jarvis Surreptitious interception and recording of private communications constitutes a serious intrusion into the privacy rights of those affected Duarte ; Wong at pages ; R.
Tse ,  1 S. Fliss ,  1 S.
Police Search and Seizure Limitations
Pires; R. Lising ,  3 S. Video surveillance without prior judicial authorization in a home, hotel room, or other place where there is a reasonable expectation of privacy will also constitute an unreasonable search or seizure Wong at pages Text messaging bears the hallmarks of traditional voice communication — it is intended to be conversational, transmission is generally instantaneous, and there is an expectation of privacy in the communication. Also relevant is the degree to which the investigative technique has the potential to reduce the sphere of privacy enjoyed by citizens. In Mills , the creation of an online profile for a fictitious child allowed the police to know from the outset the investigative technique only capture communications sent by adults seeking out children online who were strangers to them — communications that are not subject to a reasonable expectation of privacy.
This is to be distinguished from techniques that would have the potential to capture private communications, such as sifting through communications before being able to ascertain the nature of the relationship, or the monitoring of communications in hopes of discovering illegal content Mills at paragraphs Documents of a personal and confidential nature or that reveal a personal core of biographical information carry a reasonable expectation of privacy sufficient to attract constitutional protection Mills at page 81; Plant at pages This includes information which tends to reveal intimate details of the lifestyle and personal choices of the individual Plant at page ; Tessling at paragraph Personal computers , because of the vast amounts of information they contain — including intimate correspondence, the details of our financial, medical and personal situations, Internet browsing histories, as well as information that users cannot control and information that they may not be aware of or may have chosen to discard — attract a very high expectation of privacy Morelli at paragraph ; R.
Because of the unique and heightened privacy interests in personal computer data, specific, prior judicial authorization is presumptively required to seize a personal computer from a home Reeves at paragraph Text messages are both private and discreet: receipt of the information is confined to the people to whom the text message is sent; service providers are contracted to confidentiality; no one else generally knows about the existence or contents of the message Marakah at paragraph As such, electronic text conversations are capable of revealing a great deal of personal information para.
A police request for subscriber information corresponding to specifically observed, anonymous Internet activity engages a high level of informational privacy Spencer at paragraphs 47, Commercial documents generally carry a lower or diminished expectation of privacy Branch at page 35; Plant at pages ; Canada Inc.
Quebec Attorney General ; Tabah v. Quebec Attorney General ,  2 S. A reasonable expectation may nevertheless be found in commercial documents and section 8 is therefore capable of applying in this context see e. Information that has not been developed or created in a confidential context, and is accessible to the public for inspection such as publicly maintained computer records, might not carry a reasonable expectation of privacy see e. Images capturing the thermal energy or heat radiating from a building, which are too crude to permit any inferences about the precise activity giving rise to the heat, do not attract a reasonable expectation of privacy Tessling at paragraphs Patterns of electricity consumption as measured by a digital recording ammeter, which is used to measure electrical power flowing into a residence and which permits a strong inference of the presence of a marihuana grow operation, are sufficiently revealing of activities inside the home to attract a reasonable expectation of privacy Gomboc at paragraphs , and ; but see Plant , in which less detailed electricity consumption records were held not to attract a reasonable expectation of privacy.
A demand by a police officer for production of a driver's license does not constitute a section 8 search.
Investigations: Seven exceptions to the search warrant rule - Law Officer
There is no intrusion on a reasonable expectation of privacy where a person is required to produce a licence, permit or other documentary evidence of a status or compliance with a legal requirement that is a lawful condition of the exercise of a right or privilege R. Hufsky ,  1 S. Privacy expectations are generally lower in relation to administrative searches or seizures in regulatory schemes where the purpose of the intrusion is to ensure compliance with the statute rather than the prosecution of criminal acts see e.
This is because in a modern industrial society, it is generally accepted that many activities in which individuals can engage must nevertheless to a greater or lesser extent be regulated by the state to ensure that the individual's pursuit of his or her self-interest is compatible with the community's interest in the realization of collective goals and aspirations.
It follows that there can only be a relatively low expectation of privacy in respect of premises or documents that are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course Thomson Newspapers ; Fitzpatrick ; White ; Branch.
This principle is not absolute, however. The reasonable expectation of privacy in relation to communications subject to solicitor-client privilege is invariably high, regardless of whether the context is criminal or regulatory Federation of Law Societies at paragraph 38; Chambre des notaires. The degree of personal privacy expected at borders, where travellers expect to be searched, is lower than in other enforcement situations R.