In case one is arrested for stealing things, or possibly also for drugs offences, it is common for police to visit the suspect’s home address and search it for items of a similar character. What legal provision gives police these types of powers?
2 Answers
There are several possible ways that search powers can arise, with or without a warrant.
If it is a case of "stealing things" then the Theft Act 1968, s.26 lets a justice of the peace issue a warrant. The condition is that information must be laid showing "that there is reasonable cause to believe that any person has in his custody or possession or on his premises any stolen goods". The person does not need to have been arrested yet, but perhaps he will be depending on the outcome of the search.
For "drugs offences" the Misuse of Drugs Act 1971, s.23 is parallel, in relation to searches for controlled drugs or documents relating to drug dealing.
More generically, the standard power for a warrant to search premises is under the Police and Criminal Evidence Act 1984, s.8. The search in this instance is for evidence related to any indictable offence (which must be specified in detail when making the warrant application).
PACE also codifies some other means of searching premises without a warrant. The most relevant to the question are -
- Section 18 - If someone is arrested for an indictable offence, a constable may search their premises for evidence relating to that offence, or a similar one.
- Section 32(2)(b) - Similar power to enter and search "any premises in which he was when arrested or immediately before he was arrested" for evidence relating to the indictable offence.
The Section 18 power covers a search of your home, even if you were arrested elsewhere. The Section 32 power lets police search your home if they arrest your friend there, even though it is not his home and you are not the one under arrest.
(All of the above have other conditions and caveats which do not need to be reproduced here.)
-
1I guess the legal theory behind this is that an arrest warrant already has a high standard of scrutiny, as high as or higher than a search warrant, and it is likely that someone suspected of a crime may have evidence of that crime at their premises, or may have gotten rid of said evidence shortly before the arrest. Therefore, a separate search warrant would be excessive since all the arguments have already laid out in the arrest warrant and all the standard have been met. Commented Dec 9, 2023 at 9:43
A post-arrest search of a home for related evidence would normally be justified by a search warrant as provided by s. 487 of the Criminal Code.
For an example, see R. v. Lichtenwald, 2018 SKQB 114: a person was arrested for "trafficking cocaine and methamphetamine, proceeds of crime and possession for the purpose of trafficking cocaine and methamphetamine. ... The Integrated Drug Unit then took steps to obtain a search warrant for the accused’s home."
Where the arrest happens in the home itself, a tailored, warrantless search incident to arrest may also be justified by a suspicion of a safety risk to the police (R. v. Stairs, 2022 SCC 11). This cannot be a wide reaching search for evidence in the home; that would require a search warrant.
