Power of the Police to Search

Introduction:

This note will discuss the power of the police to conduct a search and five circumstances under which this power can be exercised.

Power of the Police to Search and the Right to Privacy:

In Article 18(2) of the 1992 Constitution, a right to privacy is provided for as follows:

No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.

This provision recognises that people have a right to privacy but also recognises that the right to privacy is not absolute and can be interfered with on grounds of public safety, the prevention of disorder or crime, and for the protection of the rights and freedoms of others.

When the Police Can Exercise the Power of Search:

The police can exercise the power of search under the following circumstances:

1. Search a place entered by a person sought to be arrested: In Section 4 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) , it is provided that a police officer acting under a warrant of arrest may demand to enter a place to search for the person against whom the warrant was issued. If the demand is denied by the occupant of the premises, the police officer may forcibly enter the premises. Even if no warrant is issued, but a warrant may issue, the police officer may enter the place and search for the person to be arrested if seeking a warrant will enable the person to escape.

2. Search an arrested person: A person who has been arrested can be searched by the police. This is provided for in Section 8 of Act 30. In conducting the search, Subsection 3 provides that the search shall be made with strict decency; and where the arrested person is a woman, the search shall be by another woman. Also, Subsection 4 provides that the search does not include the right to examine the private part of the arrested person.

3. Search pursuant to a search warrant:

A. Meaning of a Search Warrant:

In Black’s Law Dictionary, 9 ^th ed., a search warrant is defined as:

A judge's written order authorizing a law-enforcement officer to conduct a search of a specified place and to seize evidence...Also termed search-and-seizure warrant.

In the Criminal Procedure Course Manual, a search warrant is defined as:

An order in writing issued by a judge or magistrate in the name of the Republic and directed to a police officer or any other person commanding him to search a specified house, premises, or place for some property reasonably suspected to be connected with the commission of an offence for which the offender may be arrested, and to bring the property, when found, before the judge/magistrate to be dealt with in accordance with the law.

B. Procedure for the Issue of a Search Warrant:

Section 88 of Act 30 makes provisions on the issue of a search warrant. A search warrant is issued upon a motion ex parte by the police before a District Magistrate. Before issuing the search warrant, the District Magistrate must be satisfied that a building, vessel, carriage, box, receptable, or place has:

i. Anything related to a crime, for which the offender may be arrested without a warrant.

ii. Anything which affords evidence that a crime has been committed.

iii. Anything which is reasonably believed is intended to be used in committing a crime against a person for which the offender may be arrested without warrant.

It is also important to note that the search warrant issued by the Magistrate is for structures like a building, vessel, or box, among others. The effect of this is that a search warrant is not issued against the body of a person but against properties. If the police want to search a person, they can do so after arresting him; but the search will not be pursuant to a search warrant but pursuant to the power of a police to search an arrested person.

C. Execution of a Search Warrant:

Generally, a search warrant is executed between the hours of 6:30 a.m and 6: 30 p.m. However, the court may direct that a search warrant be executed at anytime. This is provided for in Section 89 of Act 30 which reads:

89. Execution of search warrant:

A search warrant may be issued and executed on a Sunday and shall be executed between the hours of 6.30 a.m. and 6.30 p.m., but the Court may, by the warrant, authorise the police officer or other person to whom it is addressed to execute it at any hour.

Further, in executing a search warrant in respect of a building that is closed, Section 90 of Act 30 provides that the police are required to demand entry to the place from the person residing in or in charge of the building or place. If the demand is refused, the police may forcibly enter the building or place and may also break out of it for the purpose of their own liberation.

D. What to Do After Seizing Items Pursuant to a Search Warrant:

In Section 91 of Act 30, it is provided that articles seized under a search warrant shall be brought before the Magistrate who may detain the articles or cause them to be detained in a manner that preserves it until the conclusion of the case.

4. Search without a Warrant:

In some instances, a search of a shop, house, or any premises can be conducted by a police officer without a warrant.

This is provided for in Section 94 (1) of Act 30. In said provision, the following are the conditions for a search without a warrant:

i. The police officer is not below the rank of Assistant Superintendent of Police. The following are below the rank of Assistant Superintendent: Chief Inspector, Inspector, Regional Sergent Major, District Sergeant Major, Sergent, Corporal, Lance Corporal, Constable.

ii. If the police officer is below the rank of Assistant Superintendent of Police, he must be authorised by an officer who is the Assistant Superintendent or higher in rank.

iii. The police officer must have reasonable cause to believe that the premises contains property which has been stolen or dishonestly received.

If these conditions are met, the officer may search the premises as if he had a search warrant and can seize will be deemed to have been specified in the search warrant. This is provided for in Section 94(2) of Act 30 .

5. Search electronic devices with the assistance of an authorised person:

In Section 98(2) of the Electronic Transactions Act, 2008 (Act 772) , it is provided that:

A law enforcement agent may seize any computer, electronic record, program, information, document, or thing in executing a warrant under this Act if the law enforcement officer has reasonable grounds to believe that an offence under this Act has been or is about to be committed.

Further, in Section 99(1)(a) of Act 772, it is provided that:

(1) A law enforcement officer executing a warrant may be accompanied by an authorised person and is entitled, with the assistance of that person, to

(b) use or cause the computer to be used to search any programme or electronic record held in or available to the computer;

Conclusion:

The police have wide powers to conduct a search. This note discussed five circumstances under which the police may exercise their powers to conduct a search. The note discussed the search that can be conducted on an arrested person, search of a premises for the purpose of effecting an arrest, search with and without a warrant, and search of an electronic device.