Searching a person incident to arrest

On the gravel shoulder of Lakeshore Road at 23:46, with car 14's lights flashing behind them and car 9 pulling in ahead, Malhotra told Mason Pruitt what was about to happen: 'You're under arrest, so I'm going to search you now for anything that could hurt us or you, and for evidence. Keep your hands where they are and tell me if there's anything sharp in your pockets.' Pruitt said there was a knife in his right front pocket. Malhotra found a folding knife clipped there, a wallet, a set of keys, a roll of cash and two phones, one of which was vibrating. When he patted the front of Pruitt's waistband, where Reyes had seen him push his hand, he felt something soft and lumpy under the clothing at the front of his groin. He did not reach inside. He told Pruitt what he had felt, told Reyes, and the officers decided that the item would be dealt with at the station.

Desjardins pauses the story there. 'Every one of those decisions has a legal basis and a legal limit,' he says. 'Why could Malhotra search Pruitt without a warrant? What was he allowed to look for? Why did he stop at the clothing? This lesson answers the first two questions. The next two lessons answer the rest.'

The power to search incident to arrest

In Canada, the power to search incident to arrest comes from the common law, as developed by the Supreme Court in Cloutier v. Langlois in 1990 and R. v. Caslake in 1998. A search is lawful under this power only if three conditions are met. The arrest itself must be lawful. The search must be truly incidental to the arrest, meaning the officer is searching for a valid purpose connected to the arrest: protecting the officer, the person or the public; preserving evidence of the offence; or preventing escape. The officer must actually have that purpose in mind, and the purpose must be reasonable. Finally, the search must be conducted in a reasonable manner. Unlike a search warrant, the power does not require reasonable grounds to believe anything will be found; it rests on the lawful arrest itself.

Two features of the Canadian rule matter in practice. First, the search is discretionary: Cloutier said officers may search, not that they must, and they should not use the power in an abusive way. Second, the search must be linked to the reason for the arrest. For an arrest for an offence where no evidence is likely to be on the person, such as an arrest on an old warrant for failing to appear, the evidence purpose may not apply, but the safety purpose almost always does when the person is being transported.

What the search may cover

The search incident to arrest covers the person, their clothing and things they are carrying, such as a bag, a purse or the contents of their pockets. Officers can open containers on the person if the purpose of the search supports it, for example a cigarette pack that could hold a razor blade or drugs. The search must be proportionate to its purpose: a quick pat-down for weapons is proportionate to a safety purpose, while a detailed examination of every paper in a wallet needs an evidence purpose connected to the offence.

When Reyes arrested Dana Whitcomb for theft, she asked Whitcomb to open her shoulder bag so she could check for other unpaid items. The search was for evidence of the offence for which she had been arrested, which made it truly incidental. Reyes looked through the main compartment and found a phone, keys, a wallet and a receipt for groceries from another store. There were no other store items. She did not search the wallet or the phone, because there was no reason to think they held evidence of the theft. She noted what she had searched, what she found and why she had stopped.

For Riley Dunn, the search at the car was a safety search before transport. Malhotra checked his pockets and waistband and found a wallet, a lighter, a set of keys and a phone, all of which went into a property bag. Dunn had no weapons. Malhotra told the class he had not looked through the wallet or the phone, because there was no connection between their contents and an assault on a doorman. 'If he'd been arrested for using a stolen credit card, the wallet would have been different,' he said.

Timing and place

The search is usually done right after the arrest, because the safety and evidence purposes are most urgent then. A delay does not automatically make the search unlawful, but the officer must be able to explain it, and the further the search is from the arrest in time and place, the harder it is to say it was truly incidental. Officers often do a quick safety search at the scene and a more thorough search at the station, which is lawful as long as each search has a valid purpose. In R. v. Stairs in 2022, the Supreme Court of Canada adjusted the Caslake test for searches of a home incident to arrest for safety reasons, requiring reasonable suspicion that the search will address a safety risk and limiting the search to areas linked to the arrest, because of the heightened privacy of the home.

Searching with dignity

A search touches a person's body, often in public, and can be humiliating even when it is lawful. Officers should explain what they are going to do before they do it, use the back of the hand or other methods taught at the academy for sensitive areas, avoid unnecessary comments, and protect the person's privacy as much as the situation allows. A safety pat-down at the roadside is very different from a search that removes clothing, which is covered in lesson 9. Port Ardent's policy, like that of many services, allows an officer of any gender to conduct an urgent safety pat-down incident to arrest, with professionalism and care, but directs that searches be done by an officer of the same gender as the person where practicable and requires more intrusive searches to be done by same-gender officers. Policies also allow transgender, non-binary and two-spirit people to state a preference for the gender of the officer who searches them, and direct officers to respect that preference where it is safe to do so.

Larocque emphasizes that searches should never be used to punish, intimidate or embarrass. 'If a person mouthed off to you on the street, that does not change what you are allowed to look for or how,' she says. 'The search is for safety and evidence. Full stop.'

Searches at booking and property

When a person is lodged in the cells, they are searched again and their property is listed and stored. This search is part of the service's duty to keep the cells safe and to protect the person's property, and it is usually conducted under the search incident to arrest power and the service's custody procedures. The property is listed in front of the person, who is asked to sign the list, and items such as belts, shoelaces and drawstrings may be removed to reduce the risk of self-harm. Cash is counted in front of the person and a second officer.

Cash check: 31 + 4 = 35 banknotes, worth 31 × 20 + 4 × 10 = 620 + 40 = 660 dollars. The person is asked to confirm the count and sign the list.

The example uses invented figures similar to what Malhotra found on Pruitt. Counting and recording cash in front of the person and a second officer protects everyone: it prevents false accusations of theft, and it records evidence that may matter later in a trafficking case.

When the search is unlawful

If the arrest is unlawful, the search incident to it is also unlawful. If the search goes beyond its purpose, such as reading through a person's messages after an arrest for a minor assault, or is conducted in an abusive way, it can breach the person's rights. Evidence found in an unreasonable search may be excluded under section 24(2) of the Charter if admitting it would bring the administration of justice into disrepute. The practical rules are straightforward: make sure the arrest is lawful, know your purpose, search only as far as the purpose allows, and write down what you did and why.

Finding evidence of another offence

Sometimes a lawful search incident to arrest turns up evidence of a different offence. When Malhotra searched Pruitt, he found the folding knife and the cash. If he had also found a stolen credit card in another person's name, he could have seized it, because it was in plain view during a lawful search and its incriminating nature was obvious. The key is that the search itself must stay within its lawful scope. An officer who finds unrelated evidence while searching properly may seize it. An officer who widens the search in the hope of finding unrelated evidence has stepped outside the power, and anything found that way may be excluded.

The same principle applies to the people around an arrest. Arresting one person does not give a power to search their companions. If Pruitt had had a passenger, the passenger could not be searched simply because Pruitt was arrested. The officers would need a separate lawful basis, such as a protective search under Mann if they had reasonable grounds to believe the passenger posed a safety risk, or grounds to arrest the passenger too.

Searching in public

Searches incident to arrest often happen in public: at the roadside, outside a bar, in a mall. Officers should think about where the search happens as well as how. Moving a few metres to a quieter spot, turning the person away from a crowd, or doing a quick safety pat-down at the scene and a fuller search at the station can all reduce embarrassment without reducing safety. Reyes chose the mall's staff corridor for Whitcomb for exactly this reason. Larocque notes that complaints about searches are often less about what was searched than about where and how. 'Nobody likes being searched,' she says. 'People can accept it when they see it done professionally. They don't forgive being humiliated in front of their neighbours.'

Officers should also think about who will see the person's property. Wallets, phones and bags contain private information, photographs and medication that have nothing to do with the arrest. Looking only as far as the purpose requires, and handing the property straight into a sealed bag, protects that privacy. It also protects the officer from a later claim that something went missing or was read without authority. Malhotra's habit is to describe each item aloud to the camera as it goes into the bag, so that the recording and the property list match exactly.