What You Should Know If The Police Come To Your Door
SO THE POLICE ARE AT MY DOOR: WHAT DO I DO?
As a large law firm that practices strictly criminal defence work, we get a lot of calls from frantic individuals along the lines of, “The police are at my door… what should I do?” When the police show up at your door, there is often not much time to react. The few individuals who do get to speak to a lawyer before answering the door are rare. This blog post attempts to outline your legal rights and responsibilities if the police come to your door.
As with all members of the public, the police have an implied right to approach the front door of a residence and knock for the purpose of convenient communication with the occupants; however, this implied license ends at the door. The police may knock and announce their presence at your door but, unless they have a warrant, you are not required to open the door, to answer any questions, or to cooperate with the police in any fashion.
POLICE ENTRY INTO A HOME – THE “FEENEY” WARRANT
For nearly two decades now, it has been established that prior to entering an individual’s home to make an arrest officers must obtain a specialized warrant known as a “Feeney” warrant. This is required due to the significantly increased privacy interests associated with an individual’s home.
Once a Feeney warrant is obtained, the police must announce their presence (i.e., by knocking or ringing the doorbell), identify themselves as police officers, and outline their purpose for attending at the residence (i.e. “we have a warrant”). Before forcing entry into a home the police should, at the minimum, request admission and have admission denied thereby allowing the resident(s) to potentially consent to the entry.
If the police arrive at your door with a Feeney warrant, you are legally obligated to allow them into your home; however, you are not required to assist them in searching your home in any way, shape or form. If you think the Feeney warrant may have been improperly obtained, do not argue with the police on the scene or attempt to prevent them from entering but contact a lawyer immediately.
The requirement for police officers to obtain a Feeney warrant, however, is not without qualification. Exceptions exist both according to statutory authority, at common law and, of course, where an individual with the authority to permit entry to a home provides full and informed consent.
STATUTORY EXCEPTIONS TO OBTAINING A FEENEY WARRANT
The statutory exceptions are found in the Criminal Code. One exception authorizes an officer to enter an individual’s home to arrest someone without a warrant in “exigent circumstances” to prevent imminent bodily harm or death, or to prevent the imminent loss or destruction of evidence.
The Alberta Court of Appeal, in R v Tav, has commented on the definition of “exigent,” adopting the Ontario Court of Appeal’s definition in R v Rao, which is:
“Exigent indicates in dictionary usage, the ‘requiring of immediate action or aid; pressing, urgent’ or ‘a state of pressing need; a time of extreme necessity; a critical occasion or one that requires immediate action or necessity; an emergency, extremity.”
This exception may arise, for example, when there is a dropped 911 call that appears to have identified an individual in distress. If no one answers the door upon police arrival, the dropped 911 call may serve as sufficient grounds to believe there are “exigent circumstances” for the police to enter the home to ensure that no one is injured or in the process of being killed.
If the police have entered your home because of “exigent circumstances” and have now found items, paraphernalia, or evidence of other offences (e.g. assault), you will want to contact a lawyer to see if the circumstances under which the police entered your home were truly exigent. If a judge finds that there were not exigent circumstances, any evidence found once the police were inside your home may be ruled inadmissible in Court, and the charges may be dropped, as a result.
COMMON LAW EXCEPTIONS – THE “HOT PURSUIT” DOCTRINE
Another common law exception to the requirement of a Feeney warrant is the “hot pursuit” doctrine, which functions to prevent a person from avoiding an otherwise lawful arrest by fleeing into their home or the home of a third party.
In R v Macooh, the Supreme Court defined it as a continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction. In Feeney, the Supreme Court recognized that in “cases of hot pursuit, the privacy interest [of the citizen] must give way to the interest of society in ensuring adequate police protection.”
In order for the hot pursuit doctrine to be invoked, there must therefore be an immediate connection between the commission of the alleged offence, the pursuit of the alleged offender, and that person’s arrest. Further, this exception to the general rule from Feeney that a warrantless entry into a home to effect an arrest is unlawful is very narrow.
As the Ontario Court of Appeal held in R v Van Puyenbroek, “[i]f there are no exigent circumstances, it is difficult to imagine why an officer could not proceed to obtain the warrant, outside of a “classic” situation of hot pursuit, in which the officer is literally on the heels of a suspect at the moment the suspect enters a dwelling-house.
The hot pursuit doctrine only applies where (a) there are reasonable and probable grounds to believe and the indictable offence has been committed and that the person sought is within the premises and (b) a proper announcement is made prior to entry.
Moreover, even if the doctrine of hot pursuit is found to apply the actions of the officer must nonetheless not constitute an unjustifiable use of power on the part of the police. The requirements of that test, however, are far beyond the scope of this post.
As above, if the police enter your home, purportedly while in “hot pursuit,” and you are arrested as a result, it is important that you contact an experienced criminal defence lawyer to ensure the police have not violated your Charter rights.
COMMON LAW EXCEPTIONS – INFORMED CONSENT FROM SOMEONE WITH REAL AUTHORITY
Of course, police officers are always free, and encouraged, to obtain informed consent prior to seeking entry into a dwelling house. The factors required in order to establish valid consent search or seizure were outlined by the Ontario Court of Appeal in R v Wills and require that:
- There actually be consent, express or implied;
- From someone with the authority to give the consent in question;
- The consent be voluntary and not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
- The giver of the consent be aware of the nature of the police conduct to which he or she was being asked to consent;
- The giver of the consent be aware of his or her right to refuse to permit the police to engage in the conduct requested; and
- The giver of the consent is aware of the potential consequences of giving the consent.
In summary, the police must advise the person giving consent of the nature of the consent that the police are seeking, be informed that they are not required to consent, be aware of the consequences of giving consent (i.e. that incriminating evidence could be found and used against them), and actually give consent freely, without duress or pressure, and have the authority to do so.
WHAT YOU SHOULD KNOW IF THE POLICE COME TO YOUR DOOR
While many individuals believe that cooperating with the police is a good idea, it often isn’t. Before consenting to any search requested by the police, you would be wise to ask the police to wait outside while you have an opportunity to speak with your lawyer in private. Or simply call a lawyer prior to answering the door if it is clear they do not have a warrant.
If you have more questions about what to do if the police come to your door, don’t hesitate to contact our legal team. We’re here to help you understand and know your rights in all situations.
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