Police search while on one's own property?

wearelopey

wearelopey

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Hey everyone,

So, hypothetically speaking of course,

If police searched someone on their own property, and found / charged the person with possession of something they legally shouldn't have had on them, is it considered a legal search? Is there any wiggle room within this?

What if the police stated that there was a reported robbery and/or break-in in the area, and that is why they searched said person.


I'm assuming more details would need to be given, seeing as each case is specific etc.

So, my hypothetical question is, do police have the right to search you on your own property? like your front lawn or on your porch?

Thanks everyone, this question was asked to me a few days ago.
 
Police cannot search without a warrant. You are protected under the charter of rights and freedom if they search you illegally and the case will be dismissed regardless of what they find on you. Police are able to search only if you consent to the search. If the police reports to you there is a crime in the area and needs to search your house, you can refuse, unless you match the description of the person and they have reasonable and probable grounds to arrest you, then they're able to search. Otherwise, no they cannot search anyone.
 
OP; your scenario is too broad. Police MAY have the right to search a person, but circumstances will dictate. More details are required in order to provide a more accurate answer.

toekneekey's advice is ONLY accurate barring no additional information. There are many circumstances where the right to search may exist.

This is either going to turn into an endless "what if" thread, or the OP will provide the totality of the situation to better describe the situation.
 
The main way to secure a warrantless search is to get the subject's consent . Most people just allow it without a thought while those that are slightly less ignorant are intimidated into it: "I can go and get a warrant, but if I find something then, you're screwed. Make it easier on yourself, your cooperation will be taken under consideration." <--- The cheque's in the mail and I won't come in your mouth :D

Bottom line: There's a good chance that the subject cracked and consented to the search.
 
I am reading wrong info in this thread.

Police definately have the right to search you on your property if its incidental to your arrest. no warrant required.

That being said. yes the situation is way too broad and can not be fully answered, and I am certainly not going to type pages of info.
 
Another scenario:

Noise complaint, they knock on the door and they get engulfed in a cloud of ganja smoke. They see a couple of guys tokin' blunts.. That would give them reasonable and probable grounds to search.
 
OpenGambit said:
I am reading wrong info in this thread.

Police definately have the right to search you on your property if its incidental to your arrest. no warrant required.

That being said. yes the situation is way too broad and can not be fully answered, and I am certainly not going to type pages of info.
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The vague situation described by the OP seems to indicate that the search RESULTED in the arrest, not the other way around.
 
FiReSTaRT said:
Another scenario:

Noise complaint, they knock on the door and they get engulfed in a cloud of ganja smoke. They see a couple of guys tokin' blunts.. That would give them reasonable and probable grounds to search.
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Yup, full rights to enter, arrest, and conduct a search subsequent to arrest (within limits, of course) due to the exigent circumstance of the possibility that the evidence will be destroyed if the time is taken to obtain a warrant.
 
coyo said:
The vague situation described by the OP seems to indicate that the search RESULTED in the arrest, not the other way around.
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I am aware of that, someone else posted that police can not search without a warrant, that is completely false and my comment was directed at that. The point about dismissal based on an illegal search is also false.

I am not commenting on the OP's post because well, it doesn't have any of the important information required, plus its getting into legal advice territory, which I generally avoid ( see my sig )
 
Do our legal rights really matter anymore? It seems they've been cast aside and our authorities are given carte blanche to do what they want.

Personally, I've stood up for my legal rights in a polite but firm way only to have my life made difficult by those entrusted to do "good" in our society. I've little faith left.
 
mat2312 said:
Do our legal rights really matter anymore? It seems they've been cast aside and our authorities are given carte blanche to do what they want.

Personally, I've stood up for my legal rights in a polite but firm way only to have my life made difficult by those entrusted to do "good" in our society. I've little faith left.
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if you have lived in another country that is not as just or democratic as ours, you would realize that they do matter a lot.

Simply put, our rights have remedies.
 
The way I look at it is if they ask for permission they don't have probable grounds to conduct a search.
 
OpenGambit said:
if you have lived in another country that is not as just or democratic as ours, you would realize that they do matter a lot.

Simply put, our rights have remedies.
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I hold my rights very closely, it just seems the average public doesn't. Their blanket trust of the authorities makes me shake my head in disbelief. The checks and balances our society is based upon are slowly erroding and the errosion isn't just limited to the ones we need on government/authorities. It's really death by 1000 cuts and before we know it, we may end up like the countries you referenced. People that care about their rights are labelled as troublemakers, criminals or wackjobs.

We've already given up too much with roadside checkpoints, pre-trial penalties and warrantless searches, not to mention the lack of action against some members of the police who blatantly abuse members of the public.

Why is it people are so eager to impose rules on others. Just leave us alone....
 
it is way more complicated then this. The foundation is right but there are many technicalities. Ill give a brief rundown but it is even more complicated then my simplified explanation.

toekneekey said:
Police cannot search without a warrant (for house, this is wrong due to exigent circumstances, look it up as too long to explain)(look up feeney and house search warrant) (for a person it is wrong due to search incident to arrest , reasonable grounds for the search of the person, and investigative detention).

You are protected under the charter of rights and freedom (more complicated then this blanket statement, see previous statement) if they search you illegally and the case will be dismissed regardless of what they find on you (wrong due to S.24 of the charter which looks at what was found weighed up against the severity of the breach, e.g. if there was an illegal search and they find a gun, theres a good chance that person will get convicted) .
Police are able to search only if you consent to the search (no, see first line, , if you have no reasonable grounds for the search, no exigent circumstances etc, the only thing left is consent search, but even with consent it may not be enough in most cases due to R.v Wills I believe which requires informed consent, e.g. you have to tell them that they dont have to consent, and if you find something they will be arrested, basically telling them not to consent) .
If the police reports to you there is a crime in the area and needs to search your house, you can refuse, unless you match the description of the person and they have reasonable and probable grounds to arrest you, then they're able to search (this gets complicated due to numerous reasons, they cannot just search your house by you matching the description of the suspect, if your on the front lawn and you match the description they can arrest you but they would need a search warrant for the house, unless there were exigent circumstances to go in. they can search the person after the arrest. Where it gets complicated is being allowed to go on the lawn which is the OP's question.
Every person unless otherwise posted is allowed to go to the front door of a persons home from their walkway due to implied consent. If someone is approaching the door and the owner says get off the lawn then they cannot go any further and have to leave to the sidewalk unless exigent circumstances such as destruction of evidence, hot pursuit, to save someone etc..
They can investigate you and arrest you on the lawn unless they you tell them to get off due to trespass to property act, they cannot enter into your 'home' to arrest you without a feeney warrant.

this is very brief but gives you the gist of some aspects of searches.

. Otherwise, no they cannot search anyone. (no, see above)
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mat2312 said:
We've already given up too much with roadside checkpoints, pre-trial penalties and warrantless searches.

Why is it people are so eager to impose rules on others. Just leave us alone....
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the three that you mention,
roadside checks - one of the best ways to catch impaired drivers, traffic accidents are one of the biggest killers in society, a large part of the worst accidents are caused by impairds. how are RIDE programs bad? if they were every kilometer i would understand but there usually only set up friday, saturday nights when traffic flow is minimal so hardly an inconvenience and there an amazing deterent for impaird driving. nobody should lose a love one to an impaird driver so im all for these.

Pre-trial penalties - I assume you mean being held in custody prior to the trial. firstly, only a small handful of criminals are held in pretrial detention (after their bail hearing, 24 hours after arrest), these are the ones who are too dangerous to release for the victims sake or others, or have shown an inability from past cases to abide by bail conditions.
If there is a serial killer who is finally caught do you think we should release him back out into the public before his trial?

Warrantless searches - simply, getting a warrant takes numerous hours to weeks depending on the circumstances, by that time the evidence is long gone and mr. criminal is laughing.
 
Ok so I asked my buddy what kind of scenario he would be asking about. He said off the top of his head that lets say the person was on his way home late at night, and was say, wearing a backpack or some kind of bag.

The person saw the police on their street, went onto their own property, such as a front yard or porch etc, and then was confronted by the police.

The person was told there had been a break in and/or robbery in the area and he was thus searched.

They happened to find something that would not be related to any robbery or mugging etc... aka this person was definately not the person who robbed anyone etc.

Seeing as he had a backpack on at the time I would guess it would be legal grounds to search?

Im assuming it would have a lot to do with what description was given as to who the robbery suspect was?

Is this still way too broad? I or my buddy are not looking for legal advice, just a general direction as to whether someone would have a case or any wiggle room regarding something like this.
 
geoff-9 said:
the three that you mention,
roadside checks - one of the best ways to catch impaired drivers,
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I've heard the police say they catch most drunks on patrol by simply watching them drive. Not trying to start an argument.. I think they were using that as an argument for being able to pull people over just to check their ID..to give them a chance to sniff what's up..
 
geoff-9 said:
Warrantless searches - simply, getting a warrant takes numerous hours to weeks depending on the circumstances, by that time the evidence is long gone and mr. criminal is laughing.
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On the other hand, we do have to guard against groundless police or government intervention in our lives..
 
wearelopey said:
Ok so I asked my buddy what kind of scenario he would be asking about. He said off the top of his head that lets say the person was on his way home late at night, and was say, wearing a backpack or some kind of bag.

The person saw the police on their street, went onto their own property, such as a front yard or porch etc, and then was confronted by the police.

The person was told there had been a break in and/or robbery in the area and he was thus searched.

They happened to find something that would not be related to any robbery or mugging etc... aka this person was definately not the person who robbed anyone etc.

Seeing as he had a backpack on at the time I would guess it would be legal grounds to search?

Im assuming it would have a lot to do with what description was given as to who the robbery suspect was?

Is this still way too broad? I or my buddy are not looking for legal advice, just a general direction as to whether someone would have a case or any wiggle room regarding something like this.
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It's getting there, but still vague. What I think you're talking about is an investigative detention; the guy is a POSSIBLE suspect in a crime but the grounds do not yet exist . An investigative detention allows for an officer to conduct a pat down search for weapons for his/her safety IF they can articulate a reason to be concerned for weapons; a B&E suspect will most often have some form of tool(s) on them and a robbery suspect will most often have some form of weapon.

You went on to say that police found SOMETHING not involved in the B&E / robbery... too vague.

This could all be backwards as well as it's entirely possible that the officer, due to evidence and information, actually HAD grounds for the arrest in which case a full search is authorized right off the bat.
 
toekneekey said:
Police cannot search without a warrant. You are protected under the charter of rights and freedom if they search you illegally and the case will be dismissed regardless of what they find on you. Police are able to search only if you consent to the search. If the police reports to you there is a crime in the area and needs to search your house, you can refuse, unless you match the description of the person and they have reasonable and probable grounds to arrest you, then they're able to search. Otherwise, no they cannot search anyone.
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This is not completely true. In the US, if they performed a search without a warrant, it would be completely thrown out of court. In Canada, it would still be admissible if the they can prove they had just cause to warrant a search. And this can be done really easily. I neighour said the saw something on the porch that looked suspicious or you match the discription of the person we are looking for so I am going to search you.

Also the police like to indimidate people into providing their consent. ie. Can I search you, no, why not, do you have something to hide!?

If your caught with a lot of drugs on you, you cant get off just because they didnt have a warrant like in the US, Canada is a little smarter than the US in that aspect.
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