Imagine this. You’re arrested in your home. Suddenly, police start searching the room they find you in. You ask to see their search warrant. They tell you that they don’t need one for the limited search they’re doing. Is this legal? Like so many things in our law, the answer is: it depends.
The police have the power to search someone’s person and their surrounding area after their arrest and seize anything in the arrestee’s possession or within their surrounding area. This power, known as “search incident to arrest”, comes from common law and was famously articulated by the Supreme Court of Canada in the seminal case, R. v. Caslake,  1 S.C.R. 51. It is extraordinary power because, unlike many other police powers, searches incident to arrest do not require a warrant or reasonable and probable grounds. Instead, this power is properly exercised where:
- the individual being searched is lawfully arrested,
- the search is truly incidental to the arrest in the sense that it was conducted for a valid law enforcement purpose connected to the arrest itself, and
- the search itself must be conducted reasonably.
But the police’s power to search someone and their surrounding area after an arrest is not unlimited. Although Canadians have a strong interest in effective law enforcement, they also have an equally strong interest in ensuring their privacy rights are respected during polices searches. And in certain contexts, privacy interests are particularly significant. Accordingly, the courts have modified the search incident to arrest framework accordingly, demanding more of police to justify a search in some scenarios. For example, the police power to search incident to arrest has been narrowed for strip searches (R. v. Golden, 2001 SCC 83), penile swabs (R. v. Saeed, 2016 SCC 24), and cellphone searches (R. v. Fearon, 2014 SCC 77). Even still, the power to search homes incident to arrest had not been clarified by the Supreme Court until R. v. Stairs, 2022 SCC 11. This blog provides more information about what the Court decided.
The case of Mr. Stairs
In Stairs, police responded to a 9-1-1 call of a man seen swerving in his vehicle and hitting his female passenger who was inside the car. The police found the vehicle that matched the 9-1-1 call description in the driveway of an unknown house. Officer’s ran the license plate number and learned that Mr. Stairs was the driver, an escape risk, and had a violent history. Police knocked and announced their presence. When nobody answered, they entered their home, concerned for the safety of the female passenger. A woman ran up from the basement with fresh injuries to her face, which supported the police officers’ belief she had been assaulted. Mr. Stairs disobeyed police commands, running across the basement from the living room and barricading himself in the laundry room in. Eventually, he surrendered and was arrested downstairs. After his arrest, one of the officers conducted a visual search of the basement living room, finding methamphetamine behind a couch and by a coffee table in plain view.
Mr. Stairs argued that the search of the basement living room where the methamphetamine was found was not a lawful search incident to arrest, thus violating his s.8 Charter rights to be free from unreasonable search and seizure. The Supreme Court disagreed, ultimately holding that the limited search was justified. That said, in reaching this conclusion, the Supreme Court modified the traditional search incident to arrest framework to make searches of homes incident to arrest Charter compliant, and more demanding than many other searches incident to arrest that happen outside the home.
A modified search incident to arrest framework: the home context
Police may search surrounding areas after they arrest someone for the purposes of ensuring safety, preserving evidence, or discovering evidence. In Stairs, the Supreme Court held that different areas within a home may constitute a surrounding area that police may search following someone’s arrest. But the court placed constraints on police officers’ ability to do so.
In short, the Court laid out a more stringent framework in recognition of the heightened privacy interests inherent within a home. It held that when police search an area outside an arrested person’s immediate physical control within a home: (1) the police must have reasonable suspicion that there is a safety risk that could be addressed by the search; and (2) the search must be conducted in a reasonable manner respecting the heightened privacy interests of a home (para 56)
1. Reason to suspect a safety risk
Police require reasonable suspicion that a search of a home will (actually) address any safety concerns they have about themselves, the public or an accused. This is higher than the traditional search incident to arrest standard of “some reasonable basis”, which permits officers to conduct a search based on only generalized concerns. The reasonable suspicions standard requires “a constellation of objectively discernible facts assessed against the totality of the circumstances giving rise to the suspicion of the risk” (para 68). This standard is based on a possibility that a search of an area within a home will address a safety risk, not on a probability that the risk will be addressed by the search.
2. Search conducted in a reasonable manner
To respect heightened privacy interests inherent in a home, police must carefully tailor their searches. This means that police cannot walk around aimlessly in a home when the circumstances do not call for it. When searching a home, police can only search those areas where there is a “link between the location and the purpose of the search and the grounds for the arrest” (para 79). Generally speaking, the police cannot search every nook and cranny within a home if there is no justification connected to the purpose of the search (i.e. a lack of a reasonable suspicion of a safety risk). Ultimately, the search of a home should only be as intrusive as necessary to remove the police’s reasonable suspicion.
After the police arrest someone in a home, they are restricted in the areas that they can search. The Supreme Court in Stairs said that police may search different areas of a home if it will help alleviate any reasonable suspicion of a safety risk. But police cannot justify a thorough search of every corner of a house based upon purported safety concerns; they are limited to searching only those areas connected to their reasonable suspicion and only up until the point that reasonable suspicion has been removed.
Whether a warrantless search of parts of a person’s home following an arrest is lawful is highly fact specific. If you are arrested, whether in your home or elsewhere, you should consult an experienced lawyer to understand what defences might be available in your case.
This blog is not intended and does not constitute legal advice. Instead, it provides some preliminary legal information about warrantless searches of a home following an arrest. If you’ve been charged with a criminal offence, contact one of our criminal defence lawyers today.