Can a purse be searched during the execution of a search warrant because of its presence in the residence?

R. v. Le 2013 BCCA 442 – this was an appeal by the accused from conviction for possession of crack cocaine. The appellant was an occupant in her sister’s home police searched for drugs pursuant to a warrant. The appellant was not a suspect. As she proceeded to leave, she picked up her purse from a table. Police searched her purse and found crack cocaine. At trial, the appellant alleged the search was illegal. The trial judge found the search was lawful and, even if unlawful, the evidence should not be excluded. The judge concluded that because the purse fell within the scope of the prior judicial authority to search, the appellant could not establish she held an objective reasonable expectation of privacy in the purse. The appellant argued the judge erred in concluding she did not have a reasonable expectation of privacy in her purse and the scope of the search warrant extended to her purse. She also asserted the judge erred in failing to exclude the evidence.

Police obtained a search warrant pursuant to s. 11 of the Controlled Drugs and Substances Act to search for “Cocaine, Ecstacy (MDMA), money, documents including score sheets and tenancy documents, drug packaging material and equipment and cell phones.”

The police arrested the appellant’s sister when she left the premises and executed the warrant. The appellant, another woman and three children were in the premises. The appellant was in bed. The police obtained the identity of these people. They were not suspects and arrangements were made for them to leave the premises while it was searched.  As the appellant was departing, she picked up her purse that was on a kitchen table. An officer asked whether the purse had been searched. It had not. The officer in charge directed that the purse be obtained from the appellant and it was.  On searching the purse, the police found a quantity of crack cocaine. The appellant was arrested. At trial, she contended that the search of her purse was illegal. This position was rejected on a voir dire.

This case referred to and quoted Hunter v. Southam, [1984] 2 S.C.R. 145 at para. 52:

“It was not unreasonable for the police officers to search the purse while it was on the table (based on their unchallenged search warrant), and therefore Thao Le could have no objectively reasonable expectation of privacy in that purse had they done so before she picked it up. If that is so, it seems difficult to understand how Thao Le could gain an objectively reasonable expectation of privacy simply by picking up the purse.”

And at para. 53:

“the legal authority to search, created by the warrant, eliminated any objectively reasonable expectation of privacy”

In the present case, it was clear that the appellant had a reasonable expectation of privacy in her purse because of the nature of the object in issue.  The Appeal Court ruled that despite the appellant’s reasonable expectation of privacy, a search of the purse while it was on the table was not unreasonable, because it was a “thing” as listed in the search warrant. At the time the search warrant initially was executed, it was merely an object in the premises.

The Appeal Court ruled once it was established that an object is a “thing” that the police are authorized to search, in its view, the authorization did not end merely because a person picked up the “thing” declaring ownership. On the narrow facts of this case, the court concluded that the appellant’s Charter rights were not violated by the search of her purse. She had a reasonable expectation of privacy in the purse, but the search was authorized by law and was reasonable. It did not become unreasonable simply because the appellant picked up her purse.  The accused’s appeal was dismissed.

“It is easy to conclude that a person has a subjective right to privacy in a purse or wallet belonging to that person. These items are commonly known to contain private items, as well as in identifying information and money and credit cards, and it is socially unacceptable for any person to rummage through these items without permission of the owner….the accused had no objectively reasonable expectation of privacy in the purse while it was on the table….the police could have searched it under authority of the warrant.”

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Filed under Recent Case Law, Search and Seizure

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