Search Incident to Arrest: The Basics



The search incident to arrest power is an exception to the ordinary requirements for a reasonable search in that the search neither requires judicial pre-authorization nor the requirement of credibly based probability that evidence in relation to the offence arrested will be discovered.  Rather the lawful ability of police to search arises from the fact of the arrest.

The power to search and seize incidental to arrest is a common law power based on pragmatic and exigent considerations inherent to the circumstances of an arrest.

These searches must be truly incidental to the arrest in question.  A search incident to arrest is only justifiable if the purpose of the search relates to the purpose of the arrest.  

R. v. Caslake, [1995] 1 S.C.R 51 at para.17.

In R. v. Belnavis, (1996), 107 C.C.C (3d) 195 at p. 213, for instance, Doherty J.A. for the Court of Appeal for Ontario held that an arrest for outstanding traffic fines did not authorize the search of the trunk of a vehicle, stating, “The authority to search as an incident of the arrest does not extend to searches undertaken for purposes which have not connection to the reason for the arrest.”  In R. v. Stillman, 1997 CanLII 384 (S.C.C), the Supreme Court of Canada (per Cory J.) agreed with Justice Doherty’s reasoning and conclusion on this issue.  

Further, for a search to be truly incidental to the arrest “means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrest.”  

            Caslake, supra, at para. 22.

If the justification for the search is to ensure the physical safety of the officers, the prevailing circumstances will inform the reasonableness of the safety search.  As an officer is required to have subjective appreciation of the purposes for which he/she searches, it is as much to say that the officer who conducts a safety search must anticipate a threat.  The nature of the threat, among other things (such as the extent to which the search intrudes upon one’s privacy), will inform the constitutionally permissible scope of the search. 

            Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca


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