Cases on Search and Seizure
Canada
Case Name: Schreiber v. Canada (Attorney General)
Case Citation: [1998] 1 S.C.R. 841
Decision Date: May 1998
Court: Supreme Court of Canada
Link(s) to Case: http://www.canlii.org/en/ca/scc/doc/1998/1998canlii828/1998canlii828.html
Abstract: The Attorney General of Canada sent a letter to the appropriate authorities in Switzerland requesting banking documents of the plaintiff to be searched and seized. The Swiss authorities agreed to carry out the request. Prior to submitting the request, the Attorney General of Canada did not obtain a search warrant. The plaintiff questioned if his section 8 rights of the Canadian Charter of Rights and Freedoms had been violated because the Canadian search warrant had not been executed first. At issue is if the plaintiff had a reasonable expectation of privacy with his Swiss banking records and whether the letter of request violated the respondent’s guarantee of security against unreasonable search and seizure contained in s. 8 of the Charter. The Federal Court Trial Division ruled that the search warrant should have been first issued and that the plaintiff had a reasonable expectation of privacy, but in a 5-2 ruling the Supreme Court argued that the plaintiff did not have a reasonable expectation of privacy with regards to his Swiss banking records and therefore could not claim a violation of his s. 8 Charter rights.
Keywords: bank account, Canadian Charter of Rights and Freedoms, foreign law, privacy, search and seizure, search warrant
Case Name: R. v. Pommer
Case Citation: 2008 BCSC 423
Decision Date: April 2008
Court: British Columbia Supreme Court
Link(s) to Case: http://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc423/2008bcsc423.html
Abstract: Mr. Pommer and his wife separated in 2004 but continued to live together in the same house albeit different bedrooms. A couple months after their separation, the daughter found a camcorder in the bedroom she shared with her mother. Mr. Pommer’s wife immediately kicked Mr. Pommer out of the house. Upon leaving and the finalization of their divorce, Mr. Pommer “abandoned” a home computer at his ex-wife’s home. Fearful that inappropriate images of her and her daughter may have been dispersed online, Mr. Pommer’s ex-wife contacted the police, but stated she did not want to open a criminal investigation. Cst. Johnson conducted a warrantless search of the home computer and discovered several images that constituted child pornography. These images led Cst. Johnson to open a criminal investigation against Mr. Pommer. In 2005, Cst. Johnson received a search warrant to perform a forensic examination of the computer which was granted; upon its execution, additional illegal images were uncovered. This search led Cst. Johnson to gather more evidence against Mr. Pommer and, after two unsuccessful attempts, obtain a search warrant for his condominium and his office. At issue in this case is if the police breached Mr. Pommer’s section 8 Charter rights that protect him against illegal searches. Did Mr. Pommer have reasonable expectation of privacy in the home computer and its contents? In this voir dire, the Supreme Court argued he relinquished his expectation of privacy because in his process of moving out of the house, he returned twice but left the home computer and knew that the locks on the doors were going to be changed. In effect, he had given up access and control of that computer and lost his reasonable expectation of privacy. Furthermore, the defense counsel argued that how the search warrants were obtained and their contents was misleading in parts and the evidence obtained as a result of the warrantless search should not be admitted in court. After an extensive and meticulous review of Cst. Johnson’s actions, the Court held that he acted in good faith of and that the breach of Mr. Pommer’s s. 8 Charter rights amounted to a “technical violation” and the evidence could be admitted at trial.
Keywords: admissibility, Canadian Charter of Rights and Freedoms, electronically stored information (ESI), forensic analysis, privacy, search and seizure, voir dire
Case Name: R. v. Bishop
Case Citation: 2007 ONCJ 441
Decision Date: April 2007
Court: Ontario Court of Justice
Link(s) to Case: http://www.canlii.org/en/on/oncj/doc/2007/2007oncj441/2007oncj441.html
Abstract: The accused was charged with two counts of being in possession of child pornography. At the time of the arrest, the police seized several compact discs and a computer system owned by the defendant. The defendant argued his section 8 rights of the Canadian Charter of Rights and Freedoms had been violated because the search warrant was overly broad and the police violated his privacy by not clarifying their search protocol which would have isolated the information they sought to seize to seize. Justice Clarke discusses the evolution of search warrants in the digital age and some of the problems that this type of information posses for privacy concerns, such as, “overseizure” (i.e., seizing “things beyond those justified by the grounds”), the identification of relevant information, and the value of copies versus the value of the originals may have on evidence. Based on his understanding that law enforcement may need to seize a computer system and additional peripheral devices (i.e., printers) for contextual and operational purposes, Justice Clarke did not believe the search warrant was overly broad. He also dismissed the arguments against invasion of privacy because the defendant, by his own actions that led to his arrest, nullified his right to privacy. Furthermore, the search warrant stipulated that a trained specialist in forensic examination would conduct the search, no software or hardware would be damaged, and “an officer would be present during the search to ensure that anything seized which was not child pornography would not be searched and would be returned to the applicant.”
Keywords: Canadian Charter of Rights and Freedoms, computers, electronically stored information (ESI), electronic evidence, privacy, search and seizure
USA
Case Name: State v. Bellar
Case Citation: 231 Ore. App. 80; 217 P.3d 1094; 2009 Ore. App. LEXIS 1509
Decision Date: December 2009
Court: Court of Appeals of Oregon
Link(s) to Case: http://scholar.google.ca/scholar_case?case=2787501167929932164&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Abstract: The defendant took his computer to a repair shop to have his computer fixed and files copied so they could be transferred to a new computer. The owner of the repair shop, Mr. Wells, opened a file he believed the defendant may not have wanted saved only to discover the file contained child pornography. Mr. Wells copied the files to a CD and notified his mother who worked for the local sheriff’s office. Two months later, he was contacted by a sheriff deputy to whom the CD was given. A search warrant was issued and the defendant arrested. The defendant argued that the child pornography was not his and placed on the computer by the previous owner. The defendant also contested the search warrant. The trial court upheld this position by stating that the warrant authorized the seizure of the defendant’s computer and other personal items but not the subsequent search or viewing of their contents. The trial court also granted the defendant’s supplemental motion to “suppress evidence obtained as a result of the police viewing the file contained on the CD provided to them by Wells but only to the extent that their search exceeded the scope of the private search by Wells.” The court of appeal disagreed with the trial and argued that the warrant did “authorize police to search for items without authorizing the seizure of any of the items.” In his dissenting opinion, Judge Sercombe argued that the defendant did not abandon his right to privacy by interacting with Mr. Wells and the police needed a warrant to search the CD Mr. Wells had made from the contents of the defendant’s hard drive.
Keywords: electronically stored information (ESI), Fourth Amendment, privacy, search and seizure, search warrant
Case Name: Midkiff v. Commonwealth of Virginia
Case Citation: 54 Va. App. 323; 678 S.E.2d 287; 2009 Va. App. LEXIS 294
Decision Date: June 2009
Court: Court of Appeals of Virginia
Link(s) to Case: http://www.courts.state.va.us/opinions/opncavwp/2393073.pdf
Abstract: The plaintiff argued that the search warrant was “stale” and unreasonable. The trial court agreed with this position but allowed the seized evidence to be used in court because the officers that executed the warranted operated in good faith. At trial, the police entered into evidence twelve images from a CD that had been produced from a DVD that had been created from the plaintiff’s hard drive. The plaintiff argued, among other things, that the evidence should not be admitted because it violated the best evidence rule because the copies were not reliable. Relying on testimony from the forensic expert who copied the images from the hard drive to the DVD and the police officer who transferred the files from the DVD to the CD, the court ruled that the images from the CD were “fair and accurate representations of the digital files” from the plaintiff’s computer (the trial court did not admit four images to be admitted because they had been “combined” and did not appear as they did on the computer).
Keywords: admissibility, best evidence rule, electronically stored information (ESI), reliability, search and seizure
Page last updated: July 10, 2010
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