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Originally Posted by dissentowner
On what grounds? Yes, you can pat a person down for officer safety but you can't just pull a guy over based on the grounds you believe he is operating an illegal detector and pat him down. That is how you get sued. You cannot search a person for a radar detector, even if you found it you can't take it, you have zero grounds to seize it. The pat down for officer safety is there for when you believe their is a situation where your safety or another person's safety may be in jeopardy because you believe the person either has a weapon or is being violent. You can't just start patting people down without grounds.
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It's pretty easy for an officer to justify a roadside stop generally; there are plenty of legitimate reasons you might be pulled over. If the equipment they find is illegal, they can absolutely take it. And the search is called a "search incident to detention". There is no requirement for reasonable and probable grounds to conduct the search, just an objective concern about safety which in practice is easily met. The standard is incredibly low here - 'better safe than sorry, this guy might have a knife on him', as opposed to R&P grounds, where it's quite high. In contrast, there is no ability for the police to perform a search incident to detention of your car. Whether the detention itself is lawful is a separate issue that may lead to evidence being excluded but they're perfectly entitled to perform the search in any event.
R. v. Mann is a relevant SCC decision. In that case, officers were looking for a break and enter suspect and saw a guy they thought matched what they were looking for, so they detained him and gave him a pat-down. They felt a "soft packet" in his pocket and removed it, which contained drugs. That search violated s.8, however, if it had been a "hard packet", removing would have been justified according to the Court.
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Reasonable grounds to an officer are defined as the facts or circumstances that would cause a normal prudent person a strong belief beyond a mere suspicion. It would not be harder to search the vehicle because the officer would have a strong belief beyond a mere suspicion that there was a radar detecting device being operated inside the vehicle and can therefore articulate in a court of law why he had the right to look in the vehicle. It is Ontario law. He cannot however search a person for that device.
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Basically you have a reasonable expectation of privacy in your glove compartment and there are no "officer safety" grounds for ignoring that expectation. An interference with such reasonable expectation constitutes a search for s.8 purposes and is presumptively unreasonable barring a warrant. In other words, the onus is on the officer to establish reasonable and probable grounds that an offence was being committed as well as exigent circumstances.
I don't see what the basis for R&P grounds would be in this scenario unless the police have equipment that can sense whether or not a radar detector is being used? I don't know the technology.
In any event neither is likely to happen in practice. However, it boils down to this. If there are reasonable and probable grounds to suspect you've committed an offence it doesn't matter if you have the illegal item on you or in your car, they can probably search your car anyway, and they can definitely search you because in that instance the detention is lawful. If there aren't reasonable and probable grounds, the detention may not be lawful, in which case any evidence recovered from a pat-down might be excluded if they tried to prosecute you, but they can still do the pat-down, nominally to ensure you don't have weapons. If they find an illegal item I don't see why you'd expect that they'd hand it back to you any more than they would if it was a case full of heroin.
EDIT: Maybe I should simplify what I'm saying here.
-You have a reasonable expectation of privacy in your glove box, center console, whatever. You also have a reasonable expectation of privacy in your jacket pocket.
-Interfering with that reasonable expectation absent a warrant is a presumptively unreasonable search in contravention of s.8 of the Charter, and is offside unless unless reasonable and probable grounds that an offence has been committed exist (and a couple of other things).
-For these purposes, your jacket and your glove box are no different - the officer needs R&P grounds to properly search either one of them. Consequently, there is no situation where "he can search your car but can't search your person". Either way he is interfering with your expectation of privacy, triggering the same legal requirements.
-However, there is an
additional basis for searching your person incident to detention that can be relied on, which isn't available for a search of your vehicle. So, it's easier to justify a search of your jacket pocket.