If you thought that the police cannot break into your home, think again. Here’s everything you need to know, just in case the police decides to visit you unannounced. While it’s true that the authorities have the right to enter and search private premises anytime, it’s often more complex 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 Act.
When Can the Police Search My Home?
The police can enter and search your home in any one of these following circumstances:
- they have a proper search warrant
- you decide to cooperate with them and give them “informed consent”
- they have strong grounds to believe that you have illegal drugs, weapons, or evidence of any crime in your home, which might get tampered or lost if they went to get a search warrant
The police may also enter and search your home if another authorized family member has consented to the search. However, they cannot seize a computer or laptop that you share with someone else, even though the other person gives his/her consent in writing to the police.
Entry with Your Permission
Here, permission means that you or someone in your home allows the police to enter your property. Usually, consent can only be given by an adult. If you have objection to their search without a warrant, you should tell them clearly about your decision, else it’ll be considered as your consent to their entry. In case you agree to their entry without a search warrant but change your mind later on, you have the right to ask them to leave at any point of time.
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 authority to the police to enter and search your home, even when you don’t give your consent. Under such circumstances, you have no right to get in the way of their search or arrest; in case you do, you might be convicted of obstructing the police.
Limits on the Power to Search
Just as the search warrant gives right to the police 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 evidences listed in their warrant, and they can probe only in places where they might find the evidence. For example, they cannot look inside a closet drawer if they are looking for a missing motorcycle. They are also restricted from searching your personal computer just because they have a search warrant; they need a different search warrant for the computer.
Once the police have finished searching for the evidences listed in the search warrant, they need to leave your house immediately. They cannot keep on searching the entire day. You can always enquire about the name and badge number of the officer who is in charge of the search. However, if the police discover something suspicious (perhaps something related to some other crime) while searching for evidences listed in the warrant, they have the right to take it with them and use it as evidence in court.
Arrest Warrant
An arrest warrant gives the police the authority to enter a home to arrest the accused whose name is listed on the warrant. It also gives the police a limited power to investigate a property. In case of an arrest from one’s 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 as evidence against you in court. For example, if the police have a warrant to search your home for stolen gold jewellery or electronic merchandise and they find illegal drugs like cocaine or LSD during their investigation, it’ll be seized (even though not mentioned in the warrant) and an additional case of illegal drug consumption will be filed against you.
Entry in Emergencies
The police also have the power to enter and search your home under certain kinds of emergencies. Generally, there are three circumstances that are regarded as emergencies. Firstly, if the police follow someone into your home, who they believe has already committed a crime, or is about to commit a crime. Secondly, if the police have strong grounds to believe that one of your family members is about to do something wrong. And thirdly, they may enter to provide emergency aid to someone in your home. This authority to enter your home in an emergency situation does not give them the right to investigate your home. However, while the police are still in your home, they may seize anything illegal or suspicious or any evidence of crime that they notice. The search warrant does not give them the right to arrest you, even when they’re in your home. They must have strong grounds to believe and substantiate in court that you’ve committed or been involved in a crime.
Right to Leave
Unless the evidences prove your accusations and you’re being detained by the police, you have the right to leave your home if you want to. The police will conduct a brief search of your property, during which they often handcuff and identify everyone present in the house. This is known as securing the property, and once the property has been secured, you are free to leave.
Right to be Told What’s Happening
If you’re being detained and not allowed to leave your house during the search, you have every right to know why you’re being detained.
Right to Getting your Belongings Back
Usually, if the police takes something from your home that was legally owned by you, they must return it to you within three months, unless there’s a court order that they can hold it longer. If you’re not proved guilty and the police do not return your belongings within three months, you can contact the police and ask them to return them to you. If required, you can even 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 you want to talk to a lawyer, they must allow you to do so. Only a skilled criminal defence lawyer can identify pretrial issues in a case that could mitigate or even negate potential criminal liability against you.
In case you feel that the search has been unlawful or unreasonable, do not interfere with the search. Let them do their job and wait for your turn to prove your point. Ask 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 the seemingly ‘unauthorized’ search.