Searches PDF

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Summary

police searches and how they are lawful or not....

Description

WRITING FRAME: SEARCH AND SEIZURE Steps police must take to search premises of arrested person:

1. Suspect must be arrested – as suspect arrested, police have power to search premises. - Cautioned and arrested. - Must be arrested to search premises.

2. Police can search premises either: - under S32 (straight after arrest can search premises where arrested person was immediately before/at time of arrest) OR - under S18 (search arrested persons premises if reasonable grounds to believe there is evidence inside that relates to I off)

3. Search premises which are occupied or controlled by suspect. This would inc renting premises. - Owned or renting - Other owners/renters may grant permission for police to enter and this would diminish need for warrant.

4. Is a warrant needed? - Wont be needed: a) When in close pursuit of someone police believed to have committed or attempted to commit serious crime; or b) Sort out disturbance; or c) If they hear cries for help/distress; or d) Enforce arrest warrant; or e) If invited in freely by occupant; (PERMISSION) - Two types: all-premises warrant or specific premises warrant.

5. Was the items seized subject to legal professional privilege, excluded material or special procedure material? - No = fine - Yes = breach PACE – unlawful.

SEARCH / SEIZURE UNLAWFUL: APPLY TO HAVE EVIDENCE EXCL S78

SEARCH WARRANTS – S8 PACE 1984 – CODE B:  Used when police cant/not practicable to contact person who owns premises to allow entry to search for evidence in connection with offence. 

EFFECT: officer of the rank of inspector or above can make a written application to a magistrate under S8 for a warrant authorising a police officer to enter and search the premises specified in the application.

To be granted a search warrant under S8 officer must satisfy the magistrate that there are reasonable grounds for believing that:     

an indictable offence HAS been committed (this includes an indictable-only offence and an offence triable either way); and there is material on the premises which is likely to be of substantial value to the investigation of the offence; and the material is likely to be relevant evidence; and the evidence does not include items subject to legal professional privilege, excluded material, or special procedure material; and it is not practicable to communicate with any person entitled to grant entry or, if it was, it is likely that the purpose of the search will be frustrated or seriously prejudiced. (e.g. suspect to grant entry they may remove/destroy evidence)

2 types of warrant may be issued:

SPECIFIC PREMISES WARRANT: Authorises police to search address specified on warrant. The entry and search under the warrant must be completed within three months of issue. Can use reasonable force to enter and search premises.

CAN POLICE CONDUCT SEARCH WITHOUT WARRANT? GENERALLY: police don’t have right to enter peoples premises without their permission/another owners. They can enter without a warrant:  When in close pursuit of someone police believed to have committed or attempted to commit serious crime; or  Sort out disturbance; or  If they hear cries for help/distress; or  Enforce arrest warrant; or  If invited in freely by occupant; (PERMISSION) or

ALL-PREMISES WARRANT: Authorises police access to all premises occupied or controlled by the person whether they are specified on the application or not. S8(2)–(4) Serious Organised Crime and Police Act 2005: covers all premises owned or occupied by the person named in the application, whether specified in the app or not, where it is not reasonably practicable to specify each of the premises at the time of the application. Warrant can authorise the police making multiple visits on multiple occasions to the premises specified in the warrant. The entry and search under the warrant must be completed within three months of issue. Can use reasonable force to enter and search premises.

THE POWER TO ENTER AND SEARCH – S17 PACE 1984: Section 17 PACE 1984 allows a police officer to enter and search any premises for the purposes of: a) b) c) d) e)

executing a warrant of arrest; arresting a person for an indictable offence; arresting a person for a specified non-indictable offence; recapturing any person who is unlawfully at large; or saving life or limb or preventing serious damage to property.

The power under S17 PACE 1984 can ONLY BE EXERCISED (exception of (e)) if the police officer has reasonable grounds for believing that the person being sought is ON THE PREMISES. (WOULD BE USED EXAMPLE IF PERSON ARRESTED AT WORK AND OFFICER WANTED TO SEARCH THEIR OFFICE)

SEARCH OF PREMISES OWNED BY ARRESTED PERSON (they don’t have to be arrested at premises)– S18 PACE 1984:  S18 PACE 1984 deals with searching any premises occupied or controlled by a person who is under arrest for an indictable offence (incs all EW offs).  Premises co-owned/rented - another owner may give consent for the search to happen so warrant wont be needed. Search PERMITTED if there are REASONABLE GROUNDS for suspecting that there is EVIDENCE ON THE PREMISES (other than items subject to legal privilege) that relate either to the indictable offence or some other connected or similar indictable offence and the written authority of an inspector is obtained. S18(2) confers the power to SEIZE AND RETAIN any item for which a police officer is authorised to search.

POWER OF SEIZURE – S19 PACE 1984: S19 PACE 1984: Officer who is lawfully on any premises has power to seize anything which is on the premises if the constable has reasonable grounds to believe that it has been obtained in consequence of: a) Commission of an offence b) it is evidence in relation to an offence c) it is necessary to seize it in order to prevent it from being concealed, lost, altered or destroyed.

ITEMS WHICH CANNOT BE SEIZED: The power of seizure DOES NOT EXTEND to items that the constable has reasonable grounds to suspect are: a) SUBJECT TO LEGAL PROFESSIONAL PRIVILEGE – any communication containing legal advice (S101 PACE). b) EXCLUDED MATERIAL - personal records held in confidence by the person who created them. Personal records are defined as medical records, records of spiritual healing and files kept by social workers and probation officers about their clients (S11 PACE) c) SPECIAL PROCEDURE MATERIAL - material which has been acquired by a person in the course of his or her trade, business or profession or other occupation or office, who holds it subject to an express or implied undertaking to keep it confidential (S14 PACE). 

POLICE SEARCH ES:

SEARCHING WITH SUSPECTS PERMISSION:  Detained person may agree to his home or business premises being searched.  Where consent is not given, however, the police have a wide range of legal powers to carry out a lawful search as below. SEARCH OF AN ARRESTED PERSON AWAY FROM PS – S32 (1) PACE 1984: STREET Where the suspect has been arrested away from the police station, s. 32(1) PACE 1984 permits a constable to search an arrested person if the constable has reasonable grounds for believing that:   

the arrested person may present a danger to himself or others; or may have concealed on him anything which he might use to assist the arrested person in escape from lawful custody; or may have concealed on him anything which might be evidence relating to an offence.

Section 32(1) - wide discretion in the way which the search is exercised - police officer may search an arrested person for ‘anything’ on that person. This means the officer can search an arrested person for items which might be wholly unrelated to the reason why the initial arrest was made as the words ‘relating to an offence’ do not necessarily relate to the offence for which the arrest is made. REMEMBER: the officer must have reasonable grounds for believing that a search is necessary. Simply making a search at the time of arrest would be unlawful unless the officer could prove the necessary ‘reasonable grounds’ for this belief. A power to seize and retain items found is included. A police officer may not require a person to remove any clothing in public other than an outer coat, jacket or gloves - (s. 32(4) PACE 1984).

SEARCH OF PREMISES WHERE SUSPECT HAS BEEN ARRESTED – S32 PACE 1984: Section 32(2)(b) PACE 1984 - gives officer power to enter and search any premises where the suspect was at the time of his arrest or immediately before his arrest. SEARCH FOR: Can search for evidence relating to the offence suspect is under arrest for provided the offence is an indictable offence (incs all EW offs) REASONABLE GROUNDS: Officer must have reasonable grounds for believing that there is evidence relating to the offence for which the suspect has been arrested. Q OF FACT. UNREASONABLE: Where the reasonableness of the officer’s belief and/or the admissibility of any evidence discovered as a result of the search is disputed by the defence, the issue will be decided prior to trial or in a voir dire (trial within a trial). EFFECT: Evidence obtained as a result of an unlawful search remains admissible subject to the court’s exclusionary discretion under S78 PACE 1984. Section 32(1) PACE 1984 confers the power to seize and retain any item for which a police officer is authorised to search....