Consent For A Valid Consent Search Essay
In R v. Wills (1992) the court found the following criteria necessary for a valid consent search:
1. There was consent, expressed or implied;
2. The giver of the consent had the authority to give the consent;
3. The consent was voluntary (not police coerced);
4. The giver of consent was aware of the police conduct;
5. The giver of consent is aware of their right to refuse to permit the police to engage in the conduct requested and/or may pull their consent at anytime;
6. The giver of consent is aware of the possible consequences of giving consent.
Many legal arguments have arisen due to the consent authority as it pertains to digital evidence.
Many of these arguments involve the giver of consent not actually having the authority to give consent. In a court decision in R v. Morelli (2010) it was determined that personal computers are in fact private. This notion goes one step further in R v. Cole (2011), whereby a computer technician doing routine maintenance on a school owned computer (Mr. Cole had exclusive use of it) was found to contain child pornography. The school consented to the seizure and subsequent searching of the computer by law enforcement. Police copied the hard drive from the computer and subsequently did analysis on that copy without a warrant. The three trial judges of the Ontario Court of Appeal found that the police did violate Mr. Cole’s privacy and they excluded the evidence from the police search. According to Crown Counsel Henry…