Search and Seizure

From Criminal Defense Wiki
Revision as of 13:21, 1 June 2010 by Agaiser (talk | contribs)
Jump to: navigation, search

Background

Search and seizure is a legal procedure used in both civil and common law legal systems where law enforcement officials and other relevant authorities conduct search of an individual's property, who they suspect as being involved in the crime, and confiscate evidence they consider as being relevant to the crime .

Search and Seizure Examples

Cambodia

  • In case of a flagrant offence, judicial police may conduct a search at anytime, after obtaining the authorization from the Royal Prosecutor, which is valid even if the authorization is verbal (art. 91 CCCP)

Search of home

  • A written consent from the occupant of the house is required for a search to be conducted. Where the occupant denies access for search, the President of the Court of First Instance who has territorial jurisdiction may authorize the search and the Prosecutor shall personally lead the search. It cannot be conducted before six o clock in the morning and after six o clock in the evening. (art.113 CCCP)

China

  • The client has the right to reject an unlawful search. If he is not shown a search warrant from before, the search is unlawful. A search may be conducted without a search warrant if an emergency occurs at the time of arrest or detention. Any articles and documents discovered during an inquest or search that may be used to prove a criminal suspect's guilt or innocence may be seized, but articles and documents that are irrelevant to the case may not be seized. All seized articles and documents shall be carefully checked by the investigators jointly with the eyewitnesses and the holder of the articles; a detailed list shall be made and duplicated on the spot and shall be signed or sealed by the investigators, the eyewitnesses and the holder. One copy of the list shall be given to the holder, and the other copy shall be kept on file for reference. (art. 111-115 CPL)

Search of person


Search of home

  • For the purposes of collecting criminal evidence and tracking down a criminal offender, the investigating personnel may search the residence of the crime suspects and persons who might hide the criminal offender or criminal evidence (art. 109 CPL)

India

  • The officer or other person making an arrest may take from the person arrested any offensive weapons and shall deliver them to the Court or officer to whom the person making the arrest must produce the arrestee (s. 52 Criminal Procedure Code 1973)

Search of person

  • The officer making the arrest may search that person, and put in safe custody all articles, other than necessary wearing apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person. (s.51 (1) CPC)

Search of home

  • If a police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within any place, the person residing or being in charge it, shall allow the officer free ingress thereto, and afford all reasonable facilities for a search therein. (s.47 CPC)

Kenya

Constitution

  • 76 (1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.


Criminal Procedure Code, 2009

  • 26 (1) A police officer, or other person authorized in writing in that behalf by the Commissioner of Police, may stop, search and detain -
    • (c) any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained.
  • 118. Where it is proved on oath to a court or a magistrate that anything upon, with or in respect of which an offence has been committed, or anything which is necessary for the conduct of an investigation into an offence, is, or is reasonably suspected to be, in any place, building, ship, aircraft, vehicle, box or receptacle, the court or a magistrate may by written warrant (called a search warrant) authorize a police officer or a person named in the search warrant to search the place, building, ship, aircraft, vehicle, box or receptacle (which shall be named or described in the warrant) for that thing and, if the thing be found, to seize it and take it before a court having jurisdiction to be dealt with according to law.

Tanzania

Criminal Procedure Act, 1985

  • 25(1) Subject to the provisions of sections 50 and 51 of this Act, any police officer may do any or ail of the following things namely, stop, search and detain:
    • (a) any vessel, boat, aircraft or vehicle in or upon which there is reasonable cause to suspect that there are-
      • (i) any stolen goods;
      • (ii) any things used or intended to be used in the commission of an offence;
      • (iii) without lawful excuse, any offensive weapons, an article of disguise or any article prohibited under any law;
    • (b) any person who is reasonably suspected of having or conveying inany manner any of the articles mentioned in paragraph
  • 38
    • (1) If a police officer in charge of a police station is satisfied that here is reasonable ground for suspecting that there is in any building, vessel, carriage, box, receptacle or place-
      • (i) anything with respect to which any offence has been committed;
      • (ii) anything in respect of which there are reasonable grounds to believe that it will afford evidence as to the commission of any offence;
      • (iii) anything in respect of which there are reasonable grounds to believe that it is intended to be used for the purpose of committing any offence, and the officer is satisfied that any delay would result in the removal or destruction of that thing, or would endanger life or property, he may search or issue a written authority to any police officer under him to search the building, vessel, carriage, box, receptacle or place as the case may be.
    • (4) No prosecution resulting from the exercise of powers under this section shall be commenced without the consent of the Director of Public Prosecution.
  • 42
    • (1) A police officer may
      • (a) search a person suspected by him to be carrying anything concerned with an offence, or
      • (b) enter upon any land, or into any premises vessel or vehicle, in which he believes on reasonable grounds that anything connected with an offence is situated, and may seize any such thing that he finds in the course of that search, or upon the land or in the premises, vessel or vehicle as the case may be-
        • (i) if the police officer believes on reasonable grounds that it is necessary to do so in order to prevent the loss or destruction of anything connected with an offence; and
        • (ii) the search or entry is made under circumstances of such seriousness and urgency as to require and justify immediate search or entry without the authority of an order of a court or of a warrant issued under this Part.
    • (2) A police officer who believes on reasonable grounds that a person is carrying an offensive weapon or anything connected with an offence may stop that person and seize any such weapon or thing that is found on the person.
    • (3) A police officer who believes on reasonable grounds that an offensive weapon, or anything connected with an offence is being carried in a vessel or vehicle, may stop and seize any such weapon or thing found in the vessel or vehicle.

Uganda

Criminal Procedure Act, 1950

  • 3. Search of place entered by person sought to be arrested.
    • (1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into or is within any place, the person residing in or being in charge of that place shall, on demand of the person acting under the warrant or such police officer, allow him or her free ingress to the place and afford all reasonable facilities for a search in it.
    • (2) If ingress to such place cannot be obtained under subsection (1), it shall be lawful in any case for a person acting under a warrant, and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity to escape, for a police officer, to enter the place and search in it, and in order to effect an entrance into the place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his or her authority and purpose, and demand of admittance duly made, he or she cannot otherwise obtain admittance.
  • 6. Search of person arrested.
      • (a) by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail; or
      • (b) without warrant, or by a private person under a warrant, and the person arrested cannot legally be admitted to bail or is unable to furnish bail, the police officer making the arrest or, when the arrest is made by a private person, the police officer to whom he or she makes over the person arrested, may search that person and place in safe custody all articles, other than necessary wearing apparel, found upon him or her.
    • (2) Notwithstanding subsection (1), a police officer may search any person who has been arrested and may take possession of anything found on the person which might reasonably be used as evidence in any criminal proceedings.

United States

Fourth Amendment (IV) to the United States Constitution -

  • 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Zimbabwe

  • When searching without a warrant, police officers shall not enter any dwelling without the consent of the occupier (part VI, div B s 54(2) CPEA);
  • The State may seize any article -which is concerned in or is on reasonable grounds believed to be concerned in, the commission or suspected commission of an offence - which it is on reasonable grounds believed may afford evidence of the commission or suspected commission of an offence - which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence (part VI, div B s (49) (a-c) CPEA)

These articles may only be seized by virtue of a warrant (part VI, div B s (50) CPEA)

  • A police officer may search any person or premises and consequently seize an article without a warrant if: - the person concerned consents to it - if he believes on reasonable grounds that a warrant would have been issued to him or that the delay in obtaining one would prevent the seizure or defeat the object of the search. For more exceptions see (part VI, div B s (51) (1-3)

Search of a person

  • A peace officer or other person arresting any person under this Part may search that person, and shall place in safe custody all articles, other than necessary wearing apparel, found on him (part V, div A, s (41) (2) CPEA)

Rights of the accused

Table of Contents

Rights/ Protections from Police

Rights during Detention

Rights at Trial

Sentencing

Rights in Prison