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| Patrick J Ducharme |
By common law, the police have the power to search a person and her immediate surroundings incident to her arrest. The search does not have to be based upon reasonable grounds to believe that the person arrested is in possession of evidence, contraband or a weapon. The search need only have a purpose related to the arrest. Typically, the police claim the need to search incident to arrest, for their own protection, and the protection of the public, or, the preservation or discovery of evidence. In contrast, there must be additional grounds for concluding that a strip search is necessary. Except in rare and exigent circumstances, strip searches are to be conducted in police stations and should be performed with minimal force and by an officer of the same gender as the arrested person.
There are both subjective and objective issues to be considered on searches incidental to arrest. This was the case in a search of a vehicle of the arrested person based on “police policy”. Even though the search took place many hours later and based on police policy rather than appearing to be “incidental to the arrest” the court found that the breach was not considered “serious”.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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