Search and Seizure - Your Rights and Powers of the Police

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So on to the topic of Search and Seizure by Police. As with arrests, search and seizure also infringes on personal liberty. The focus here will again mostly be on the Criminal Procedure Act 51/1977, and search and seizure is dealth with in Chapter 2.

WHAT MAY THE POLICE SEIZE?

According to Section 20 of the CPA, a police official may seize anything which has been used, or is reasonably believed to have been used, in the commission of an offence, or which may be evidence to such an offence, or which may be intended to be used in such an offence.

20 The State may, in accordance with the provisions of this Chapter, seize anything (in this Chapter referred to as an article)—

(a) which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence whether within the Republic or elsewhere;

(b) which may afford evidence of the commission or suspected commission of an offence whether within the Republic or elsewhere; or

(c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.

Once again, the topic of reasonable belief or suspicion is touched on. Please refer to the thread regarding this topic posted by defqon1. As is mostly the case where Police require reasonable belief or suspicion to search or seize anything, should the lawfulness of such search or seizure be questioned, the onus would be on the Police to prove said reasonable belief or suspicion. If however, evidence is obtained in an unconstitutional manner, the court may still decide whether or not such evidence should be admitted.

WHAT DOES A SEARCH WARRANT MEAN?

Section 21 of the CPA deals with search warrants, but is subject to the provisions in Sections 22, 24 and 25 of the same Act, as well as Section 13 of the SAPS Act. A search warrant can be issued either before a trial or during a trial. Before the trail, a magistrate or justice of peace may be asked to issue a warrant, in light of information subjected under oath, which has to afford reasonable basis for the belief that an article covered in Section 20 is in possesion of a person or in a place inside of the jurisdictional area of the magistrate or justice.

The warrant has to specify a particular police officer to seize the object(s) in question in terms of section 20, but each specific object need not be named, but rather a category of objects. If the warrant specifies a person to be searched, the person must be sufficiently identified, but a name need not specifically indicated. The same where a place is specified to be searched, in which case any person found in or on the place specified may also be searched.

The warrant should normally be executed in the day, unless specific written authorization is given to execute it at night. The warrant can also be issued on any day, and is valid until it has been executed or withdrawn by the issuing authority. Articles taken wrongfully has to be returned immediately. A copy of the warrant has to be shown to the person affected upon demand after the execution of the warrant.

21 (1) Subject to the provisions of sections 22, 24 and 25, an article referred to in section 20 shall be seized only by virtue of a search warrant issued—(a) by a magistrate or justice, if it appears to such magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or upon any person or upon or at any premises within his area of jurisdiction; or (b) by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence of such proceedings.

(2) A search warrant issued under subsection (1) shall require a police official to seize the article in question and shall to that end authorize such police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises.

(3) (a) A search warrant shall be executed by day, unless the person issuing the warrant in writing authorizes the execution thereof by night. (b) A search warrant may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority.

(4) A police official executing a warrant under this section or section 25 shall, after such execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, hand to him a copy of the warrant.

WHEN MAY POLICE SEARCH AND SEIZE WITHOUT A WARRANT?

Firstly, when the person who is to be searched gives consent to the search, or when anyone legally in charge of a container or premises gives consent.

Secondly, any police official may search any person/container/premises in order to seize an article covered in Section 20, if he reasonably believes that a search warrant ito Section 21 would be issued to him if he applied for it, but that the time it would take to apply for such a warrant would defeat the object of the search(which, if challenged, has to be proven by the police). An example of this would be when a drug dealer is aware of police interest in him, and would dispose of such drugs should the police leave to first obtain a search warrant.

22 A police official may without a search warrant search any person or container or premises for the purpose of seizing any article referred to in section 20—(a) if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question; or

(b) if he on reasonable grounds believes—(i) that a search warrant will be issued to him under paragraph (a) of section 21 (1) if he applies for such warrant; and (ii) that the delay in obtaining such warrant would defeat the object of the search.

Section 23 further makes provision for any arrested person to be searched without a warrant. If the person making the arrest is not a police official but a peace officer, the person can search but must deliver anything seized to a police official. If the person is NOT a peace officer, the person MAY NOT search an arrested person, but seize anything referred to in terms of Section 20, and must also deliver these to a police official.

23 (1) On the arrest of any person, the person making the arrest may—

(a) if he is a peace officer, search the person arrested and seize any article referred to in section 20 which is found in the possession of or in the custody or under the control of the person arrested, and where such peace officer is not a police official, he shall forthwith deliver any such article to a police official; or

(b) if he is not a peace officer, seize any article referred to in section 20 which is in the possession of or in the custody or under the control of the person arrested and shall forthwith deliver any such article to a police official.

(2) On the arrest of any person, the person making the arrest may place in safe custody any object found on the person arrested and which may be used to cause bodily harm to himself or others.

CAN MY LANDLORD SEARCH MY RENTAL PROPERTY?

Yes, with reasonable suspicion. Section 24 of the CPA gives any private person who is legally in charge or in occupation of a premises the right to search for, and seize, any suspected stolen stock or produce, or prohibited items like drugs, firearms or ammunition, or explosives. This person may also search any person found on these premises in these circumstances. This search or seizure can only take place if a police official is not readily available. Anything seized in terms of this section must also be handed over to police without delay.

24 Any person who is lawfully in charge or occupation of any premises and who reasonably suspects that stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on or in the premises concerned, or that any article has been placed thereon or therein or is in the custody or possession of any person upon or in such premises in contravention of any law relating to intoxicating liquor, dependence-producing drugs, arms and ammunition or explosives, may at any time, if a police official is not readily available, enter such premises for the purpose of searching such premises and any person thereon or therein, and if any such stock, produce or article is found, he shall take possession thereof and forthwith deliver it to a police official.

WHEN MAY POLICE ENTER MY PROPERTY OR HOME IN ORDER TO SEARCH AND SEIZE?

In terms of Section 25 of the CPA, a warrant may be issued for internal security matters or for maintenance of law and order or where an offence has been/is being/is likely to be committed or preperations or arrangements for such an offence are being/are likely to be made.

The official may in terms of this warrant enter any premises specified, to investigate or prevent any offences, search the premises or any person found on/in it and seize any article in terms of Section 20, subject to reasonable suspicion/belief.

A police official may act in terms of the above without a warrant, once again, if he reasonably believes that such a warrant would be issued to him and that there is no time to obtain such a warrant. The warrant specified in this section, as opposed to Section 21, does not specify preference given to day or night searches, and can thus be conducted during either.

25 (1) If it appears to a magistrate or justice from information on oath that there are reasonable grounds for believing—

(a) that the internal security of the Republic or the maintenance of law and order is likely to be endangered by or in consequence of any meeting which is being held or is to be held in or upon any premises within his area of jurisdiction; or

(b) that an offence has been or is being or is likely to be committed or that preparations or arrangements for the commission of any offence are being or are likely to be made in or upon any premises within his area of jurisdiction, he may issue a warrant authorizing a police official to enter the premises in question at any reasonable time for the purpose—

(i) of carrying out such investigations and of taking such steps as such police official may consider necessary for the preservation of the internal security of the Republic or for the maintenance of law and order or for the prevention of any offence; (ii) of searching the premises or any person in or upon the premises for any article referred to in section 20 which such police official on reasonable grounds suspects to be in or upon or at the premises or upon such person; and (iii) of seizing any such article.

(2) A warrant under subsection (1) may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority.

(3) A police official may without warrant act under subparagraphs (i), (ii) and (iii) of subsection (1) if he on reasonable grounds believes—

(a) that a warrant will be issued to him under paragraph (a) or (b) of subsection (1) if he applies for such warrant; and

(b) that the delay in obtaining such warrant would defeat the object thereof.

MAY THE POLICE ENTER ANY PREMISES FOR THE SOLE PURPOSE OF OBTAINING EVIDENCE?

Yes. This is governed in Section 26 of the CPA. Police may enter any premises without a warrant to gather evidence or statements, but is once again subject to reasonable belief. Note, this has to be done with the consent of the occupier of the premises in case of a private dwelling. Generally speaking, in these circumstances, due to fundamentals in the Constitution, a person questioned ito this section has the right to refuse to answer.

26 Where a police official in the investigation of an offence or alleged offence reasonably suspects that a person who may furnish information with reference to any such offence is on any premises, such police official may without warrant enter such premises for the purpose of interrogating such person and obtaining a statement from him: Provided that such police official shall not enter any private dwelling without the consent of the occupier thereof.

WHEN MAY THE POLICE USE FORCE IN TERMS OF SEARCHES?

Generally, the police may when they have lawful right to search a premises, use force when entry has been refused, after having audibly demanded entry. If the officer reasonably believes that an object that can be disposed of is the object of the search, this audible component is not required. Generally speaking, where the object of the entry is purely to question or interview a witness, use of such force is not permitted. If no-one is at the premises, and it is likely that the occupier will return in a reasonable time, force should not be used. If the entry is for a minor offence and the force required to permit entry will cause a lot of damage, police should wait or come back at a later time. Generally speaking, if it is reasonable to use force to enter, the use of such force will be lawful.

27 (1) A police official who may lawfully search any person or any premises or who may enter any premises under section 26, may use such force as may be reasonably necessary to overcome any resistance against such search or against entry of the premises, including the breaking of any door or window of such premises: Provided that such police official shall first audibly demand admission to the premises and notify the purpose for which he seeks to enter such premises.

(2) The proviso to subsection (1) shall not apply where the police official concerned is on reasonable grounds of the opinion that any article which is the subject of the search may be destroyed or disposed of if the provisions of the said proviso are first complied with.

WHAT IF THE SEARCH IS UNLAWFUL?

In terms of the legislation, wrongful searches are harshly dealth with. Wrongful search can result in the Police official to be found criminally liable, and also to be held liable for damage awards toward the wronged party. Further charges can come from wrongful search, like maliscious injury to property, assault, housebreaking, etc. The search could bre wrongful in many instance, for example, when the warrant is issued in terms of Section 21, and does not specify night time execution, but is executed at night, or if it specifies a specific address, but another address is searched. Or, if a search was conducted without a warrant, but there is not sufficient evidence to support reasonable belief that there was no time to obtain the warrant.

28 (1) A police official—

(a) who acts contrary to the authority of a search warrant issued under section 21 or a warrant issued under section 25 (1); or

(b) who, without being authorized thereto under this Chapter—(i) searches any person or container or premises or seizes or detains any article; or (ii) performs any act contemplated in subparagraph (i), (ii) or (iii) of section 25 (1),

shall be guilty of an offence and liable on conviction to a fine not exceeding R600 or to imprisonment for a period not exceeding six months, and shall in addition be subject to an award under subsection (2).

(2) Where any person falsely gives information on oath under section 21 (1) or 25 (1) and a search warrant or, as the case may be, a warrant is issued and executed on such information, and such person is in consequence of such false information convicted of perjury, the court convicting such person may, upon the application of any person who has suffered damage in consequence of the unlawful entry, search or seizure, as the case may be, or upon the application of the prosecutor acting on the instructions of that person, award compensation in respect of such damage, whereupon the provisions of section 300 shall mutatis mutandis apply with reference to such award.

SHOULD POLICE PAY MIND TO DECENCY WHEN SEARCHING?

Definitely. Especially when a female is searched. Section 29 of the CPA stipulates that a woman may ONLY be searched by a woman. If no female police officer is available, any woman designated by the police may conduct a search. To this effect, it must also be noted that a female can be reasonably detained until a search ito this section can be conducted.

29 A search of any person or premises shall be conducted with strict regard to decency and order, and a woman shall be searched by a woman only, and if no female police official is available, the search shall be made by any woman designated for the purpose by a police official.

WHAT ABOUT SEARCH AND SEIZURE AT ROADBLOCKS?

See Roadblocks - Your Rights and Powers of the Police - http://www.gunsite.co.za/forums/showthread.php?21110-Roadblocks-Your-Rights-and-Powers-of-the-Police

NOTE to any LEOs: This is my interpretation and understanding of the subject and legislation around it. If any law enforcement officers disagree with anything said above, please feel free to discuss in a constructive manner and I will update the post with agreed upon changes.

NOTE to the general public : Kindly refer to http://www.gunsite.co.za/forums/showthread.php?t=21096 before making any comments or posting any questions. In keeping with the above rules, feel free to ask constructive questions.

NOTE to admins/mods : Please make this a sticky if you so agree.