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Police Search Of Person And Seizure Notes

Law Notes > Litigation - Criminal Procedure Rules Notes

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6 Police search of person and seizure

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6 Police Search of Person and Seizure

Table of Contents

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Intro exam format to searches on person Issues are: whether PO had power to search, whether they conducted the search in compliance with the Power to search:

1. First issue is whether or not the person while being searched was not under arrest?
a. Was it a search of person under s 21?
i. Need reasonable grounds for suspecting existence of circumstances in s 21(1)(a)-(d) b. Under s 26 search for knives or dangerous implements?
i. c. Under s 146 search with sniffer dog?

2. Was person searched upon arrest? Under s 23

3. Was person searched after arrest while in lawful custody s 24?

4. Compliance with safeguards for exercise of power to search?
a. S 201(1)(a)-(c)?
b. S 201(2C)? Information given offence not to comply?
c. S 230? Reasonable force used?
What kind of search was conducted, was there authority for that:

5. Frisk search? Under s 3 (a) a search of a person conducted by quickly running the hands over the person's outer clothing or by passing an electronic metal detection device over or in close proximity to the person's outer clothing, and (b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person, including an examination conducted by passing an electronic metal detection device over or in close proximity to that thing

6. ordinary search" means a search of a person or of articles in the possession of a person that may include: (a) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes, socks and hat, and (b) an examination of those items. Note distinction between ordinary search and frisk search: Outer clothes can only be removed voluntarily as part of a frisk search - removal can be required as part of an ordinary search. Frisk search only extends to the removal of outer clothing, ordinary search may require removal of gloves, hats, socks and shoes.

7. "strip search" means a search of a person or of articles in the possession of a person that may include: (a) requiring the person to remove all of his or her

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clothes, and (b) an examination of the person's body (but not of the person's body cavities) and of those clothes.

8. Requirements for strip search: A police officer or other person who is authorised to search a person may conduct a strip search of the person if the police officer or other person suspects on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out: s 31 Compliance with safeguards for particular search that was carried out:

9. S 32 - for ordinary frisk and strip

10. S 33 - extra for strip

Intro: Three categories of powers to search a person: Police Search of Person and Seizure

* Types of searches - ss 29-34; H&J 1660-1664; SM 77-87

* Search without an arrest: s 20, 21, 21A, 26-28: H&J 1654-1656; 1658 to 1660, SM 87-95

* Use of drug detection dogs - ss 145-150, H&J 1754-1756 SM 95-102

* Search with arrest - ss 23, 23A, H&J pp 1657 - 8; SM 102-3

* Search after arrest - s 24, H&J 1658 SM 104-5

* What safeguards apply - ss 201, 204, H&J 1764-1767; SM 105-7 (1) Search without

* S 21 (power to search persons and seize and arrest detain things without warrant)

* S 21A ancillary power to search persons

* S 26 power to search for knives and other dangerous implements in public places and schools

* S 27 failure to comply with request under s 26

* S 28 power to confiscate knives or other dangerous implements

* S 149-50 sniffer dogs (2) Search with arrest

* S 23 - power to carry out search on arrest

* S 23A - ancillary power to search persons (3) Search after arrest:

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S 24 - power to carry out search of person in custody

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Powers to search under a warrant are dealt with in classes 7 and 8. Police Search of Person and Seizure

1. Types of searches - ss 29-34; H&J 1660-1664; SM 77-87

2. Search without an arrest: s 20, 21, 21A, 26-28: H&J 1654-1656; 1658 to 1660, SM 87-95

3. Use of drug detection dogs - ss 145-150, H&J 1754-1756 SM 95102

4. Search with arrest - ss 23, 23A, H&J pp 1657 - 8; SM 102-3

5. Search after arrest - s 24, H&J 1658 SM 104-5 What safeguards apply - ss 201, 204, H&J 1764-1767; SM 105-7

2 search without an arrest: 2a R suspicion of 1/4 circumstances under s 21 LEPRA Search without an arrest: s 20, 21, 21A, 26-28: H&J 1654-1656; 1658 to 1660, SM 87-95 Issue:

1. If going to exercise power to search - s 201(1)

2. Whether police suspected on reasonable grounds one of the circumstances in s 21(1) LEPRA such that without a warrant they were able to stop, search and detain a person and seize anything in their control?
a. s 21(1)(a)? ? person had something stolen in their possession?
b. s 21(1)(b)? ? person had dangerous article in possession being used in commission with relevant offence?
i. What grounds for reasonable suspicion that they had a dangerous article?
ii. What grounds for reasonable suspicion that dangerous article had or was being used in commission of a relevant offence?
c. s 21(1)(c)? ? person had dangerous article in public place in control being used in commission with relevant offence i. What grounds for reasonable suspicion that they had a dangerous article?
ii. What grounds for reasonable suspicion that dangerous article had or was being used in commission of a relevant offence?
d. s 21(1)(d)? --> possession of drugs/plants i. What grounds for reasonable suspicion of possession or control over prohibited drug/plants?
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1 s 201 safeguard s

2 reasonabl e suspicion of possessio n of something in s 21(1) (a)-(d)

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3. If police officer

4. Did police officer seize and detain whatever in compliance with s 21(2) LEPRA?
S 201(1) - PO must provide the peron subject to the exercise of the power with the following: (a) evidence that the PO is a PO (unless the PO is in uniform) (b) the name of the PO and his or her place of duty (c) reason for exercise of power Test: In order for a person to be stopped searched and detained and anything seized under s 21 without arrest and without a warrant a police officer must suspect on reasonable grounds that: a) Stole something: A person has something stolen or unlawfully obtained in their possession or under their control: s 21(1)(a) a. ? then PO's can seize all/part of thing reasonably suspected to be stolen: s 21(2)(a) b. Reasonable grounds that someone stole something in Lassanah - when Tag Heur employees said that there were two males in store acting suspicious, tapping, being very hard on casings with enclosed watches and trying to pull panels of glass apart manager thought they were trying to rob from him. Could take into account that alarm wouldn't be triggere lightly. b) Possess dangerous article used for an offence: That person has a dangerous article (s3) that was used or being used in connection with the commission of a relevant offence: s 21(1)(b) a. The following offences are "relevant offences" for the purposes of this Division: (a) indictable offences (b) an offence against section 93FB of the Crimes Act 1900, (c) an offence against the Weapons Prohibition Act 1998, the Firearms Act 1996, or a regulation made under either of those Acts: s 20 LEPRA b. dangerous article" means: (a) a firearm, a spare barrel for any such firearm, or any ammunition for any such firearm, or (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or (c) a spear gun, or (d) an article or device, not being such a firearm, capable of discharging by any means: (i) any irritant matter in liquid, powder, gas or chemical form or any dense smoke, or (ii) any substance capable of causing bodily harm, or (e) a fuse capable of use with an explosive or a detonator, or (f) a detonator. c) Person controls a dangerous article in a public place used as above: s 21(1)(c). person has in his or her possession

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or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence, d) Person has a prohibited plant/drug in their possession or under their control: s 21(1)(d) What amounts to 'suspects on reasonable grounds": Rondo

* What info was in mind of PO? What is relevant is the information in the mind of the PO making the arrest, and whether that information afforded reasonable grounds for the suspicion formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances: Rondo

* Some factual basis is required and the evidence material relied upon must have probative value: Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value: Streat v Bauer; R v Rondo

* Reasonable suspicion involves less than a reasonable belief but more than a possibility and more than a reason to consider/look into the possibility of its existence. Streat v Bauer; R v Rondo Something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 21 LEPRA (eg reasonable suspicion that someone has something in their possession which is unlawfully obtained). Example:

* Reasonable grounds that someone stole something in Lassanah - when Tag Heur employees said that there were two males in store acting suspicious, tapping, being very hard on casings with enclosed watches and trying to pull panels of glass apart manager thought they were trying to rob from him. Could take into account that alarm wouldn't be triggered lightly.

* In Nguyen v Elliot police admitted merely curious to see whether appellants had drugs, no reasonable grounds to search. Just watched youths on park benches known to be frequented by drug users/ dealers, N known to have been involved in drugs previously, pople came and went but no drug transaction looked, N looked anxious and alert. Refused to consent to search.

* Legg: Other case to look at for our purposes is Re Minh Quoc Le the Dr Zeus case - the reasonable suspicion was formed because of conflicting stories told while another car was driving off at high speed at a 9pm area where drug deals

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occurred; Note: lawful searching and detention can become unlawful:

* In Lassanah it appears that although s 21 LEPRA empowered the searching and detaining the police detained the appellants for one hour and this eventually became unlawful imprisonment.

3 search for thing in s 21(1)(a)(d) in persons hair or mouth

Note issue: what happens if someone gives wrong evidence to police that they act on?

* Person must give information to police that leads to wrongful detention: person must be active in promoting and causing the imprisonment as opposed to the mere giving of information to a police officer: Lassanah. Here the agents (a) wrongly activated hold up button when no reason for concern because persons had left (b) manager said that plaintiffs were tapping on glass trying to lift glass of displays or steal when clear from CCTV that didn't happen (C) Cops were told that Ps had been lifting up lids on cabinets - CCTV footage showed this didn't happen (d) manger said 'goodbye nice seeing you' (e) if they were really suspected the they should have kept door closed and rung for police - no explanation about why they activated alarm after Ps left shop. (f) no material to demonstrate why there was actual robbing of shop the week before. Furthermore (g) it should have been obvious that Oddie had an intellectual disability, unmistakable effect of demeanor - means that they could not have been mistaken for potential store robbers. ? conclusion, employees procured wrongful detention of Ps, both police and employees liable for false imprisonment. Ancillary power: If the PO suspects on reasonable grounds that the thing referred to in s 21(1)(a)-(d) is concealed in the person's mouth, or hair, the PO can request the person to: o to open his or her mouth: s 21A(1)(a) o to shake, or otherwise move, his or her hair: s 21A(1) (b) Ie steps: establish (1) that PO had reasonable suspicion that something referred to in s 21(1)(a)-(d) was in the person's mouth or hair: s 21A. That (2) PO just requested the person open mouth and shake hair: s 21A(1)(a)-(b).

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However: the PO cannot forcibly open a person's mouth : s 21A(2) What if person refuses: A person must not, without reasonable excuse, fail or refuse to comply with a request made by a police officer in accordance with this section and section 201: s 21A(3). Maximum penalty is 5 PU Did the police officer then seize and detain what they were 6 Police search of person and seizure

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