Search Warrants: When Can the Police Search Your Home?

In Canada, the right to privacy is protected under the Canadian Charter of Rights and Freedoms, and your home is one of the most private spaces you have. However, in certain circumstances, law enforcement can enter your home and conduct a search, but only when they have legal authority to do so. The most common way the police obtain this authority is through a search warrant. Knowing when the police can search your home, what a search warrant entails, and your rights during the search is crucial for protecting your legal interests.

In this comprehensive guide, we’ll explain what search warrants are, when the police can search your home, the legal requirements for obtaining a warrant, exceptions to the rule, and how to protect your rights if the police come knocking at your door.

What is a Search Warrant?

A search warrant is a legal document issued by a judge or justice of the peace that gives law enforcement officers the authority to search a specific location, such as your home, for evidence related to a crime. The search warrant must be based on reasonable grounds—the belief that a crime has been or is being committed, and that evidence related to that crime can be found at the specified location.

A search warrant typically includes the following information:

• The Location: The address of the home or property to be searched.
• The Specific Items or Evidence: A description of the items or evidence the police are authorized to search for and seize.
• The Timeframe: Some warrants specify when the search can be conducted, including restrictions on dates or times.

It’s important to note that a search warrant must be specific in scope. This means the police are only allowed to search the areas and seize the items listed in the warrant. However, there are exceptions, and understanding these limitations can help you protect your rights.

When Can the Police Search Your Home?

In Canada, the police can only search your home under certain conditions. Generally, the police need one of the following to conduct a legal search:

1. A Valid Search Warrant
   • The most common way the police can search your home is if they have a valid search warrant. To obtain a warrant, law enforcement must convince a judge that they have reasonable grounds to believe a crime has been committed and that evidence of the crime is likely to be found at the location they want to search.
   • For example, if the police believe that drugs, weapons, or stolen property are hidden in your home, they can apply for a search warrant that allows them to enter your property and look for that specific evidence.
2. Your Consent
   • The police can search your home without a warrant if you give them permission. However, you are under no legal obligation to consent to a search. If the police ask for your permission, it’s important to understand that you can refuse. Consenting to a search means that any evidence they find can be used against you in court.
   • It’s always advisable to seek legal advice before agreeing to any police request to search your home.
3. Exigent Circumstances (No Warrant Required)
   • In some situations, the police may search your home without a warrant or consent if there are exigent circumstances—urgent situations where waiting for a warrant would endanger public safety or lead to the destruction of evidence.
   • Examples of exigent circumstances include:
     • Imminent Danger: If the police believe someone inside the home is in immediate danger, they can enter the home without a warrant to ensure the person’s safety.
     • Pursuit of a Suspect: If a suspect is fleeing the police and enters a home to evade arrest, the police can follow and enter the home without a warrant.
     • Preservation of Evidence: If the police believe that evidence is about to be destroyed, they can enter and search the home to prevent that from happening.
4. Incident to an Arrest
   • If the police arrest someone inside your home, they are allowed to conduct a limited search without a warrant. This type of search is known as a search incident to arrest. The purpose is to ensure officer safety and prevent the destruction of evidence related to the arrest. However, these searches are generally restricted to areas within the immediate vicinity of the arrest.

The Legal Requirements for Obtaining a Search Warrant

For a search warrant to be valid, the police must meet specific legal requirements when applying for one. The application process involves submitting an affidavit to a judge or justice of the peace, outlining the reasons for the search.

The affidavit must establish reasonable grounds for the search, which typically involves:

1. Probable Cause: The police must have reasonable grounds to believe that a crime has been committed and that evidence of the crime can be found in your home.
2. Specificity: The warrant must specify what the police are searching for and where they are allowed to look. For example, a warrant to search for illegal drugs may limit the police to certain areas of the house where drugs could be stored.
3. Judicial Authorization: A judge or justice of the peace must review the police’s affidavit and determine whether the grounds for the search meet the legal threshold. If the judge is satisfied, they will issue the search warrant.

What Are the Limits of a Search Warrant?

Even when the police have a valid search warrant, there are limits to what they can do. Knowing these limits can help you protect your rights:

• Scope of the Search: The police can only search the areas of your home mentioned in the warrant. For example, if the warrant specifies that they are searching for stolen electronics, they are not allowed to search inside small containers where such items couldn’t reasonably be hidden.
• Seizure of Evidence: The police can only seize the items specifically listed in the search warrant. However, if they come across evidence of other crimes in plain view (e.g., illegal drugs sitting on a table), they may seize that evidence as well.
• Timing of the Search: In some cases, the search warrant may specify the time of day when the search can be conducted, such as during daylight hours. If the police search outside of these hours, the search may be invalid.
• Exceeding the Scope: If the police exceed the scope of the search warrant—by searching areas or seizing items not listed—the search may be considered unlawful, and any evidence obtained may be inadmissible in court.

What to Do If the Police Have a Search Warrant

If the police arrive at your home with a search warrant, it’s important to know how to respond to protect your rights. Here are the steps you should take:

1. Ask to See the Warrant
   • Politely ask to see a copy of the search warrant. Check that the warrant includes your address, that it is signed by a judge or justice of the peace, and that it specifies what the police are looking for.
2. Do Not Interfere with the Search
   • While you should not consent to a search that exceeds the scope of the warrant, you should not interfere with the police once they begin the search. Interfering could result in additional charges, such as obstruction of justice.
3. Take Notes
   • Keep track of what the police are doing during the search. Note the officers’ names and badge numbers, and document what areas they are searching. This information could be useful later if there are questions about the legality of the search.
4. Remain Silent
   • Exercise your right to remain silent. Do not answer any questions from the police without speaking to a lawyer first. Anything you say can be used against you in court.
5. Contact a Lawyer
   • It’s important to contact a criminal defence lawyer as soon as possible. Your lawyer can review the warrant and the conduct of the police to ensure that your rights were not violated.

Consequences of an Unlawful Search

If the police conduct an unlawful search, it can have serious legal consequences for the prosecution’s case. If your lawyer can prove that the search was conducted without a valid warrant or that the police exceeded the scope of the warrant, the evidence obtained during the search may be excluded from trial. This is known as the exclusionary rule under Section 24(2) of the Canadian Charter of Rights and Freedoms.

Without the illegally obtained evidence, the Crown may have a much weaker case, potentially resulting in a dismissal of the charges.

How De Boyrie Law Can Help

At De Boyrie Law, we understand how stressful it can be when the police search your home. Our experienced criminal defence team can review the circumstances of the search, ensure your rights are protected, and build a strong defence on your behalf.

Schedule a Free Consultation with De Boyrie Law

If the police have searched your home or you’re facing criminal charges, contact De Boyrie Law today to schedule a free, confidential consultation. We’ll review your case and help you navigate the legal process.