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Supreme Court modifies search incident to arrest inside a home

The Supreme Court of Canada has modified the application of the common law search incident to arrest power inside the home. In R. v. Stairs, 2022 SCC 11, a motorist called 911 to report seeing a male driver of another car striking a female passenger. The police located a similar vehicle parked at a home nearby and, after no answered police attendance at the door, they entered without a warrant. Police located an injured woman inside the home and Stairs was arrested in a laundry room in the basement. An officer then conducted a visual clearing search—a protective sweep—of an adjacent living room area, from where the woman had come and  Stairs had emerged before entering the laundry room. The officer was not looking for evidence, but rather was clearing the room for safety reasons. During his visual sweep, the officer walked behind a couch and saw methamphetamine in plain view. The residence was secured, and a warrant was prepared to conduct a more thorough search for evidence related to the drug offence. Stairs was charged with possessing methamphetamine for the purpose of trafficking, assault and failing to comply with a probation order.

A judge of the Ontario Superior Court of Justice found the warrantless police entry into the home, Stairs’ arrest and the protective sweep of the living room all to be lawful. Stairs was convicted of the charges. An appeal to Ontario’s highest court was unsuccessful. A two-member majority of the Court of Appeal found the search of the living room area was incident to lawful arrest. A dissenting judge found the warrantless safety search of the basement living area was not reasonable. The police did not have the necessary reasonable grounds to believe that there was an imminent threat to public or police safety. A vague safety concern was not enough.

Stairs appealed his drug conviction to the Supreme Court of Canada. He maintained that the search incident to arrest involving the sweep of the living room, which led to the discovery of the methamphetamine, was unreasonable. He contended that the common law standard for search incident to arrest needed modification for searches conducted in a home—a place where a person enjoys a high privacy expectation. He submitted that a police search for safety purposes required reasonable grounds to believe, or at least suspect, that there was an imminent threat to public or police safety

Search incident to arrest

The Supreme Court of Canada, by a slim majority, upheld the police search in this case. Although all nine judges agreed that the general authority for the common law power to search in a home incident to arrest required modification, five found what the police did in this case was reasonable. “The common law standard permits a search of the person arrested and the surrounding area of the arrest when (1) the arrest is lawful; (2) the search is incidental to the arrest, such that there is some reasonable basis for the search connected to the arrest and the search is for a valid law enforcement purpose, including safety, evidence preservation or evidence discovery; and (3) the nature and extent of the search are reasonable,” said the five member majority.

But because privacy interests are elevated in the home, like other situations presenting a heightened privacy such as strip searches, penile swabs and cell phone searches, the common law search incident to arrest power required modification to comply with the s. 8 of the Charter.

“The police cannot use the search incident to arrest power to justify searching every nook and cranny of the house.” – Supreme Court of Canada

In establishing a modified framework for safety searches incident to arrest in a home, two subcategories within the surrounding area of an arrest were recognized:

1. the area within the physical control of the person arrested at the time of arrest; and
2. areas outside the physical control of that person, but which are part of the surrounding area because they are sufficiently proximate to the arrest.

The majority went further and applied different standards for each of the two subcategories it identified:

• Area Within the Arrestee’s Physical Control – When searching the area within the arrestee’s physical control, the general framework (or baseline standard) for searches incident to arrest applied.
• Area Outside the Arrestee’s Physical Control – When searching the surrounding area outside the arrestee’s physical control at the time of arrest—but an area sufficiently proximate to the arrest—the police must have reason to suspect that the search will further the objective of police and public safety, including the safety of the arrestee.

The reasonable suspicion standard requires objective facts and is a higher standard than that which applies to the general search incident to arrest framework. “In addition, the police must have reason to suspect that the search will address the risk,” said the majority. “However, reasonable suspicion is a lower standard than reasonable and probable grounds because it is based on a possibility rather than a probability. Whether the circumstances of a particular case give rise to reasonable suspicion must be assessed based on the totality of the circumstances. Relevant considerations include (a) the need for a search; (b) the nature of the apprehended risk; (c) the potential consequences of not taking protective measures; (d) the availability of alternative measures; and (e) the likelihood that the contemplated risk actually exists.”

The reasonable suspicion standard, however, need not reach the higher bar of a reasonable belief in imminent harm. In addition, the search must be carefully tailored to respect the heightened privacy interests of the home. “As a general rule, the police cannot use the search incident to arrest power to justify searching every nook and cranny of the house,” said the majority. “A search incident to arrest remains an exception to the general rule that a warrant is required to justify intrusion into the home. The search should be no more intrusive than is necessary to resolve the police’s reasonable suspicion. Further, it would be good practice for the police to take detailed notes after searching a home incident to arrest. They should keep track of the places searched, the extent of the search, the time of the search, its purpose and its duration. In some instances, insufficient notes may lead a trial judge to make adverse findings impacting the reasonableness of the search.”

In this case, the majority found the police had reason to suspect that there was a safety risk which would be addressed through a cursory visual clearing search of the living room. The search was targeted, brief, and constrained.

The majority noted the decision in this case related solely to safety searches and did not extend to searches incident to arrest for investigation-related purposes such as evidence preservation or evidence discovery. Whether or not the reasonable suspicion standard applies to investigative purposes was left unresolved as the Supreme Court put this issue off for another day. Stairs’ appeal from conviction was dismissed.

Four Supreme Court judges concluded the search of the basement living room was unreasonable and breached s. 8. They disagreed with the majority’s distinction between areas within or outside an arrestee’s physical control, suggesting it was unnecessary and complicated the search incident to arrest framework. They would have required a “reasonable suspicion of an imminent threat to police or public safety” before a search was authorized. In their view, the searching officer provided no reasonable suspicion that anybody’s safety was at risk following Stairs’ arrest. He had been handcuffed and the victim was upstairs with an officer. And there was no sign of weapons or other people inside the residence. However, only three of these judges would have excluded the evidence and acquitted Stairs on the drug charge. The fourth judge, despite agreeing that there was a breach, would have admitted the evidence under s. 24(2).

Mike Novakowski is Blue Line’s case law columnist.