Dar­ius Em­rith

Stu­dent, Hugh Wood­ing Law School

There are two cir­cum­stances where a po­lice of­fi­cer's pow­ers of search and seizure may arise: (i) in ef­fect­ing an ar­rest; and (ii) in ef­fect­ing a search war­rant.This ar­ti­cle fo­cus­es main­ly on the search of one's pri­vate prop­er­ty in ef­fect­ing a search war­rant.

Gen­er­al­ly, a search war­rant is nec­es­sary for en­try and search of any­one's pri­vate premis­es. A search war­rant may be is­sued to en­ter a build­ing or any place to search for ev­i­dence in re­la­tion to any sum­ma­ry of­fence, as out­lined in sec­tion 41 of the Sum­ma­ry Courts Act Chap. 4:20. The on­ly le­gal way to search one's premis­es, oth­er than in ef­fect­ing an ar­rest, is with a search war­rant or the ex­press per­mis­sion of the own­er.

Where the ques­tion of ef­fect­ing an ar­rest aris­es, an of­fi­cer may en­ter premis­es with­out a war­rant

a) to pre­vent a mur­der

b) to ar­rest an of­fend­er who was fol­lowed in­to the premis­es

c) to pre­vent the com­mis­sion of a crime, and

d) to fol­low an of­fend­er run­ning away from an of­fi­cer

Is­su­ing of a search war­rant

A mag­is­trate or judge is­sues a search war­rant once a po­lice of­fi­cer sat­is­fies the mag­is­trate or judge that he has rea­son­able cause to sus­pect that grounds ex­ist to jus­ti­fy the is­sue of the war­rant. These grounds must be sworn on oath. There is no need to first lay a charge, but ev­i­dence ob­tained from the search may then be used to jus­ti­fy the charge.

Ex­e­cu­tion of a search war­rant

A search war­rant may be ad­dressed to any po­lice of­fi­cer. If a spe­cif­ic of­fi­cer is named, he alone can en­force the war­rant. Search war­rants may be ex­e­cut­ed at any time on any day of the week.A po­lice of­fi­cer can even break down the out­er door of the premis­es to ex­e­cute the war­rant, if a de­mand for en­try has been re­fused.

Usu­al­ly, a search war­rant is ex­e­cut­ed in the pres­ence of the oc­cu­pi­er or, if he is ab­sent, in the pres­ence of any adult on the premis­es.The po­lice will read the war­rant to the per­son and af­ter the search, the of­fi­cer should en­dorse on the back of the war­rant what was found and seized, the name of the per­son present and the time and date.

Seizure of prop­er­ty

The po­lice can seize any items from premis­es they have law­ful­ly en­tered, which may con­sti­tute ev­i­dence to im­pli­cate the per­son in some crime, even if the items are not re­lat­ed to the rea­son for the search or en­try.Seized goods may be re­tained as long as nec­es­sary to pros­e­cute that crime.

If the po­lice law­ful­ly seize prop­er­ty on sus­pi­cion that it was il­le­gal­ly ob­tained, they can on­ly hold such prop­er­ty for a rea­son­able time.The po­lice would have to show that they have rea­son­able grounds for be­liev­ing that the prop­er­ty was stolen, and that its con­tin­ued de­ten­tion is nec­es­sary to com­plete their in­ves­ti­ga­tions.

Il­le­gal search­es

Even if the po­lice seize goods il­le­gal­ly (that is by il­le­gal en­try or by an il­le­gal­ly ob­tained war­rant) they may re­tain them once the goods con­sti­tute ev­i­dence in re­la­tion to a crime. How­ev­er the home­own­er may have re­course in an ac­tion for dam­ages.

–This col­umn is not le­gal ad­vice. If you have a le­gal prob­lem, you should con­sult a le­gal ad­vis­er.