Search and Seizure in Canada Compared to the United States

In both Canada and the United States, when the police seek to interfere with the property rights of individuals in the course of carrying out their job duties, they may not violate the rights granted to individuals by the Constitution (Section 8 of the Charter of Rights and Freedoms and the Fourth Amendment, respectively). Such interference may take the form of searching a property or seizing a property, which typically belongs to a suspect. The purpose of searching or seizing a property is usually: to ensure the safety of the police officer by finding weapons, to ensure that the suspect cannot escape custody by finding tools that could aid an escape, to find contraband, to find information or other clues that could aid an investigation, and/or to stop a crime from happening. Except for situations where a search is considered “reasonable” by Constitutional standards, police are (generally) not allowed to interfere with property rights without a search warrant.

In the United States, courts have held that a corporation does have Fourth Amendment rights, although they are much less robust than the rights of a natural person. In Canada, the section of the Charter of Rights and Freedoms relevant to search and seizure is simply not applicable to corporations.

In both Canada and the United States, the rules that the police must follow when they interfere with the property rights of individuals in the course of carrying out their job duties – similarly to when they control the movements of individuals – vary depending on the set of circumstances presented to the police. The rules seek to give police sufficient latitude to protect themselves and to effectively perform their job duties while minimally interfering with personal liberties. At the same time, the rules are developed under the background assumption that police work is inherently unpredictable and dangerous, and that the police often seek to push the boundaries of their authority without effective supervision.

When a police officer makes an investigative detention (in Canada) or a Terry stop (in the United States), the officer may search the suspect for weapons. This is intended to protect the safety of the officer during the investigative detention / Terry stop. The scope of the search, in general, is anywhere within reach of the suspect. In the United States, if there is a locked container within the scope, and if the police officer can protect his/her own safety without opening it, the law stipulates that the container should not be opened. The intention is to secure the officer’s safety so the officer may question the suspect. If the initial search leads to evidence that supports probable cause, then the police may continue to take action based on probable cause.

The police might carry out a search for weapons but suspect the presence of contraband. It becomes controversial whether the specific observations of the police officer (including sight, sound, smell and feel) at the time provide sufficient grounds for a search that goes beyond the scope of an investigative detention / Terry stop. Oftentimes, if a police officer searches an area that cannot practicably contain a weapon (such as a small wallet), believing it to contain contraband, the court will invalidate the search on the grounds that the police did not have a sufficient basis for believing there is contraband before initiating the search – because, for example, the initial detention had nothing to do with contraband.

Once there is probable cause, the police may arrest the suspect. Upon arrest, the police may carry out a “search incident to arrest”, which is intended to, among other purposes, gather evidence to support a prosecution. Once evidence is found, it can serve as a justification for further search. A search incident to arrest often includes a search of the suspect’s clothing and articles on his/her person (e.g., bags).

What happens after an arrest? A strip search is allowed only if there is a good reason to believe it would find evidence. In both Canada and the United States, a warrantless breathalyzer test is allowed upon arrest. In the United States, blood collection generally requires a warrant, but no warrant is needed if the suspect is unconscious. In Canada, warrants are required without exception. Also, in the United States, when the suspect is taken into custody, the police may rummage through his/her personal effects on the theory that the police may “inventory” the personal effects taken by the police for safekeeping (i.e., the search is ostensibly not for evidence collection but for other purposes). However, in Canada, the police may not rummage through personal effects to “inventory” them. If no search incident to arrest is available – no grounds to believe a search may yield evidence relevant to the investigation – then personal effects are safekept by the police but not searched.

In Riley v. California (2014), the Supreme Court of the United States held that a police search of a mobile phone requires a warrant. The Court analogized a police search of the contents of a mobile phone to the police finding a key in a suspect’s pocket and using the key to search the suspect’s home. This was so intrusive that not only are the police not allowed to rummage through a mobile phone for no reason but, even with grounds for suspicion, the police must get a warrant.

In R v. Fearon (2014), the Supreme Court of Canada also circumscribed police searches of mobile phones incident to arrest. The Court held that the nature and extent of a search must be truly incidental to arrest, thus allowing access only to information with a “necessary link” to the purpose of the search. Mobile phone searches incident to arrest undertaken to discover evidence will be valid only if the investigation would be “stymied or significantly hampered” were it not for the search. Police officers conducting cell phone searches incident to arrest must take comprehensive notes of the examination, detailing the purpose, extent and duration of the search as well as any applications accessed.

In the above, the Canadian approach to the same problem is more cautious than the American approach. Instead of making a constitutional determination about all mobile phone searches, it tries to subdivide mobile phone searches into smaller components and forbid only those that go too far. It is also more willing to accept police intrusion on privacy and more trusting of police discretion. The Canadian approach treats a mobile phone search the same way as any other kind of search incident to arrest – the police must have some grounds for suspicion before a search, but it need not rise to the “reasonable and probable grounds” needed for a warrant. By implication, it eschews the reasoning in Riley v. California that a mobile phone is categorically different from other objects that might be searched on a suspect’s person and is more analogous to a search of a home.

Another important issue is whether a police officer may search the vehicle of a suspect incident to arrest. In the United States, if the police officer has reason to believe the vehicle contains evidence, then a search incident to arrest will extend to the vehicle of course. Otherwise, the police officer may search only within the reaching distance of the suspect within the passenger compartment of the vehicle (Arizona v. Gant). Moreover, some states allow police officers to arrest a driver for a routine traffic violation, which makes this power more robust. In addition, if a vehicle can be impounded, then it can be searched on the basis of the “inventory” theory. In comparison, the rules for vehicle searches incident to arrest in Canada are similar to the United States. Slightly different are that inventory searches upon impoundment are not allowed and no arrest is allowed for a routine traffic violation.

American law gives police broad leeway to open locked containers incident to arrest. There is some authority for the idea that the police may open and search all locked containers within reach of the suspect, even if the suspect cannot access them after arrest. In general, American courts are quite receptive to “taking inventory” as a justification – seized locked containers may be opened if there is some pro-forma policy in place expressing a purpose other than a search for criminal activity. The Supreme Court of Canada is more circumspect. In R v. Caslake, the Court set forth its principles on searches incident to arrest: The police must be able to give a valid purpose for the search (e.g., protecting the police, protecting the evidence, discovering evidence). This need not rise to reasonable and probable grounds, but the purpose must be related to the arrest (i.e., cannot be fishing for evidence of an entirely different crime).

In contrast to searches of personal effects, chattels and vehicles, searches of real property are much more limited. And the rules are similar in both Canada (see R v. Stairs) and in the United States. In United States v. Rabinowitz, searching the office of a suspected forger at the site of his lawful arrest was held to be reasonable. However, in Chimel v. California, it was held that there was no justification for the police to routinely search any room other than the room where the arrest took place — and, further, even searching through all the desk drawers and other closed or concealed areas in that room itself was unconstitutional. The Court in Maryland v. Buie tried to clarify matters by holding that a “protective sweep” of the entire premises (including the arrestee’s home) may be undertaken on less than probable cause if officers have a “reasonable belief,” based on “articulable facts,” that the area to be swept may harbor an individual posing a danger to those on the arrest scene. This “sweep” is not to be a full-blown, “top-to-bottom” search, but only “a cursory inspection of those spaces where a person may be found.”

Now let us leave aside the topic of search incident to arrest and turn our attention to the situation where the police intend to search something or somewhere without any arrest having been made. Broadly speaking, Constitutional limitations on police searches stem from either the suspect’s property interest in the item being searched or stem from a privacy interest of the suspect. Only after one of the two conditions are satisfied must we then consider what limitations the Constitution places on police searches.

Privacy interests will be covered in the next blog post. In this blog post, we will focus on the suspect’s property interest in the item being searched. Nonetheless, it is important to remember that the above two conditions have the relationship of an inclusive disjunction. Even if the fact pattern presents no property interest, there may be a relevant privacy interest.

A suspect’s property interest in the item being searched often becomes an issue when the police search unattended property and garbage. In both Canada and the United States, police are allowed to search garbage from a home once it is put out for pick up because it is abandoned property, and the former owner no longer has a property interest in it (United States v. Dunn). Likewise, all unattended chattels may be searched (United States v. Tugwell). The same rules apply in Canada (R v. Patrick).

In other situations, the suspect definitely has a property interest in a particular item but it is unclear whether the police’s method of investigation constitutes a search. This issue arises when the police carry out dog-sniff inspection of items in public or by using technological methods to scan individuals in public, revealing information that would not be available from a human being’s natural observation. In the United States, a dog-sniff inspection of items in public does not constitute a search or a seizure under the Fourth Amendment so long as the dog is lawfully present at the scene and the conduct is proper. Following this principle, a dog-sniff inspection of containers, packages, lockers or vehicle exteriors can be properly conducted without a warrant or probable cause. However, in Canada, a dog-sniff inspection is a search and requires reasonable suspicion.

Now let us move on to the issue of what limitations the Constitution places on police searches, given that the suspect’s property in in the item being searched is not disputed. In both Canada and the United States, the limitations imposed by the Constitution depends on the target of the search – whether it is a chattel (which includes vehicles) or it is real property. It should be noted that, if a chattel (other than a vehicle) is not in anybody’s possession, then the rules for unattended property described above will apply. Of course, if the property is in somebody’s possession, then a search of it becomes part of a search of that person.

The constitutional limitations on searches of vehicles are very different in Canada compared to the United States. In the United States, with probable cause, the police may search an automobile without a warrant (Carroll v. United States). Moreover, United States v. Ross is authority for the rule that when a vehicle is searched upon probable cause, any locked containers therein that might contain the object to be opened and searched for may be searched as well. However, in Canada, the police must get a warrant to search a vehicle. This makes search incident to arrest more important because it opens up the possibility of searching the suspect’s vehicle on “some reasonable basis” alone.

In both Canada and the United States, putting a tracking device on a vehicle (including its exterior) requires a warrant. The situation is slightly different for the swabbing of a car’s door handle (seeking fingerprints, DNA or trace amounts of contraband). In Canada, the Ontario Court of Appeals held that this investigative technique is an unconstitutional warrantless search (R v. Wawrykiewycz). In the United States, the same investigative technique was held to be a search but the procedural posture of the case did not require the court to decide whether or not the search was unreasonable (Schmidt v. Stassi).

In both Canada and the United States, the Constitution protects homes to the maximum extent. In the United States, if police enter the curtilage of a home for the purpose of obtaining information (i.e., to see, listen, smell, record activity on the property) – by any means other than permissible “knock and talk” contact – the entry must be justified by a warrant, consent, probation/parole requirements, or exigent circumstances (Florida v. Jardines). The Supreme Court of Canada is even more protective of individual rights. In R v. Evans, the Court held that, if the police have no reason to enter a property to knock on a door and speak to its residents other than an intention to sniff around for the smell of illegal drugs, then that entry is a search and requires a warrant.

Canada is more protective in another way because its definition of a “home” is broader in scope. In the United States, there is an “open fields doctrine”, which allows police to search areas outside of a property owner’s curtilage without a warrant. This includes private land regardless of fences or no trespassing signs. (Note, however, many state constitutions provide stronger protection than the United States Constitution.) A search of a suspect’s real property other than a home (or its curtilage) is equivalent to a vehicle search in the United States. On the other hand, Canada does not have an “open fields doctrine” so constitutional protection extends to all private property (R v. Le).

It is not considered trespassing for police to enter the airspace above a home using, for example, a helicopter. Indeed, police can even observe a home from the skies without entering the airspace above a home. Such surveillance is allowed in both Canada and the United States without a warrant when the surveillance is conducted visually.

Another issue is the constitutionality of a search when the suspect has a right to occupy the real property but is not the owner. Here, the rules in Canada and the United States are similar. Renters are entitled to the same protections as owner-occupiers (USA v. Phillip Thomas, Seventh Circuit). The same protections extend to hotel guests (Minnesota v. Carter). In the United States, courts have issued conflicting opinions in cases raising the issue of whether the common areas of an apartment rented by the suspect is constitutionally protected. However, in Canada, it is generally held that common areas of an apartment are constitutionally protected (R v. White, Ontario).

It should be clarified that even if the police are constitutionally required to obtain a search warrant before carrying out a search, under certain circumstances, a warrantless search is viewed as “reasonable” and therefore does not infringe on the suspect’s constitutional rights. These circumstances include: the plain view doctrine – if the police directly observe contraband, they may search places and objects for the contraband; the hot pursuit doctrine – if the police are in hot pursuit of a suspect, they may search places and objects for the suspect; exigent circumstances – when people are in imminent danger, when evidence is about to be destroyed or when a felony suspect is about to escape, the police may carry out a search to avoid the detriment. In the United States, these excepts to search warrants tend to be applied in cases involving home searches, since probable cause is sufficient for other searches. In Canada, the rules are the same, but they have a broader scope of application because probable cause is more often not sufficient.

In addition to the exigent circumstances described above, there is also no violation of constitutional rights if the police properly obtained consent before carrying out the search. However, this also opens the door to controversial fact patterns when the consent condition is not clear cut. Here, there are significant differences between Canada and the United States. In the United States, police merely need to reasonably believe the person giving consent had rights over the property even if it turned out that the person did not (Illinois v. Rodriguez). In Canada, by comparison, this situation would not constitute proper consent (R v. Cole). In the United States, if more than one resident lives in a home and one resident consents to the search while the other objects, the police may not search (Georgia v. Randolph). In Canada, the consent of only one resident is enough.

In a similar vein, controversy can arise when the police violate the constitutional right of a person other than the suspect, to be secure from unreasonable search, rather than directly violating the constitutional rights of the suspect. Here, the positions of Canadian law and American law are aligned. In Rakas v. Illinois, it was held that the infringement of the Fourth Amendment rights of another person does not give the defendant a remedy. In R v. Edwards, it was held that the defendant had no standing to challenge a search of his girlfriend’s apartment. The girlfriend described him as “just a visitor” who stayed over occasionally; he contributed nothing to the rent or household expenses and had no authority to regulate access to the premises.

Finally, in both Canada and the United States, constitutional protections against unreasonable search do not apply to the actions of private parties. They apply only against government employees (primarily police officers but technically all local, state / provincial and federal government employees such as postal workers and public-school teachers) and their agents. It is possible for private parties to become agents of the government if they act at the behest or on behalf of the government rather than out of private interest and in his/her own personal capacity. In R v. Liang, Yeung, et al., an electrical utility employee was asked by police to go onto the accused’s property to search for an electrical bypass. The employee discovered the bypass, and that information was used by the police to make an arrest. The court concluded that because the police had specifically directed him, the employee was an “agent” of the police and his actions were subject to the Charter.

In the above, we have outlined the situations where a search is considered “reasonable” by Constitutional standards – police have more freedom when carrying out a search incident to arrest, when there are exigent circumstances and when the police obtained consent. We have seen how the threshold question of whether there is a search can be controversial because the existence of a property interest is sometimes unclear. In the next blog post, we will cover how the existence of a privacy interest can also result in a search even without the defendant having any property interest in the location or item being searched. Once either a property interest or a privacy interest is established, then the issue becomes the scope of a Constitutionally permitted warrantless search.

The result of an unconstitutional search (i.e., a search that is unreasonable by Constitutional standards) in both Canada and the United States is mainly the exclusion remedy. The fruits of an unconstitutional search, which includes all “tainted” evidence that is obtained as a result of the search, may be excluded from the court record, thereby making conviction of the suspect impossible. In the United States, if an appellate court rules against the government in a novel fact pattern, then the evidence will be excluded because the government is held to have violated the Constitution. There are only limited exceptions to the exclusion remedy (Mapp v. Ohio). However, in Canada, if an appellate court rules against the government in a novel fact pattern, the court often concludes that the police were not acting in bad faith (the rule was not settled before the court made its decision) and so admitting the evidence would not “bring disrepute to justice” (R v. Collins). This seems to be quite a misguided way of adjudication because it punishes the defendant and defense counsel after all the effort that they put in to advance the aims of Constitutional law. Why would any defense counsel even bother to appeal to the Supreme Court if it would not help his client? Why would the defendant spend the legal fees to appeal?

	Welcome to the most influential Canadian law portal website on the Chinese language internet. The above journal article addresses one of the commonly encountered topics in legal practice. It is intended to serve as a reference for the general public and for scholars while living in Canada or engaging in business or research in Canada. Whether you live in China, Toronto, Vancouver or another city, if you have a need for answers to a Canadian law related question or a need for legal representation or formal legal opinion, please contact Mr. Hsieh Tung-Wen, Barrister and Solicitor, Ontario Canada (WeChat: jianadalvshi).
版权 © 2025 谢同文加拿大执业律师 – 保留所有权利。 微信: jianadalvshi		Copyright © 2025 Hsieh Tung-Wen, Barrister and Solicitor, Ontario Canada – All Rights Reserved. WeChat: jianadalvshi