If you think the police can’t enter into your home, think again. While it’s true that the authorities can at times enter and search private premises, it’s often a more complex situation than you might think. As an accused, you have the right to protect yourself from unreasonable search and seizure under the Canadian Charter of Rights and Freedoms.
Here’s everything you need to know in case the law decides to make an unannounced visit.
When Can the Police Search My Home?
The police can enter and search your home in any of these circumstances:
- They have a proper search warrant
- You give them ‘informed consent’
There are other exceptions to these general rules that may or may not apply depending on the facts of the case.
Entry with a Warrant
A search warrant is a legal document signed by a judge that states what place and which things can be searched. It gives the police authority to enter and search your home, even when you haven’t given your consent. Under such circumstances, you do not have the right to get in the way of their search or arrest. If you do, you may be charged with obstruction.
Limits on the Power to Search
Just as a search warrant gives police the right to enter and search your home, you too have the right to see the warrant. There are certain limits as to where, what and how the police can search, and they cannot look for or destroy anything unnecessarily. They can only search for the evidence that has been listed in their warrant, and they can only look in places where they may find such evidence. For example, they cannot look inside a closet drawer if they’re looking for a missing motorcycle. They are also restricted from searching your personal computer just because they have a search warrant; that would require a different document.
Once the police have finished searching, they need to leave your house immediately. You can always ask for the name and badge number of the officer in charge. However, if the police discover something suspicious (like something related to another crime) while searching for evidence listed in their warrant, they have the right to take it with them. They can also use it as evidence in court.
Arrest Warrant
An arrest warrant gives police the authority to enter a home to arrest the accused whose name is listed on the warrant. It also gives the police limited power to investigate a property.
In case you are arrested in your home, the police can only search the immediate surroundings. As in the case of a search warrant, if the police find any illegal possession or evidence of crime during their investigation, they may use it against you in court. For example, if they have a warrant to search your home for stolen jewellery or electronics and find illegal drugs like cocaine or LSD, it will be seized, even if it’s not mentioned in the warrant. An additional case of illegal drug possession will likely be filed against you.
Entry in Emergencies
The police also have the power to enter and search your home under certain emergencies.
These generally fall into two circumstances:
1) If the police follow someone into your home whom they believe has already committed a crime, or is about to;
2) They may enter to provide emergency aid to someone in your home.
The authority to enter your home in an emergency does not give them the right to investigate your home. However, while the police are in your home, they may seize anything illegal or suspicious, or any evidence of crime. Their search warrant does not give them the right to arrest you, even when they’re in your home. They must have grounds to believe (and substantiate in court) that you’ve committed, or been involved in, a crime.
Right to Be Told What’s Happening
If you’re being detained and not allowed to leave your house during the search, you have the right to know why you’re being detained.
Right to Get Your Belongings Back (h3)
Usually, if the police take something from your home that you legally own, they must return it within three months, unless there’s a court order that says they can hold it longer, or if it is being held as evidence in your case. If you’re not proved guilty and the police don’t return your belongings within that time frame, you can ask them to return them to you. If required, you can appeal to the court to have them returned.
Right to Talk to a Lawyer
If you’re being detained, you have the right to contact a criminal defence lawyer. If you tell the police that you have the right to defend yourself and want to talk to a lawyer, they must allow you to do so with certain limitations. Only a skilled criminal defence lawyer can identify pretrial issues that could mitigate or even negate your potential criminal liability.
Even if you feel the search has been unlawful or unreasonable, don’t interfere. Let the police do their job and wait for your turn to prove your point. Ask for the names of the police officers conducting the search and make detailed notes regarding the incident. Let your criminal defence lawyer assist you in your course of action against any seemingly ‘unauthorized’ search.