6 Police Search of Person and Seizure 1
Intro exam format to searches on person 2
Intro: Three categories of powers to search a person: 3
2 search without an arrest: 4
2a R suspicion of 1/4 circumstances under s 21 LEPRA 4
2 b search for knives 9
2 c search with drug dogs under s 146 12
3 Search with Arrest under s 23 (if arresting for an offence) or 23A (if just arresting to take into lawful custody) 18
4 Search after arrest when in custody s 24 19
5 safeguards that apply when exercising the power to search: s 201(1), s 201(2C), s 204 20
6 Safeguards that apply for the particular kind of search that was carried out 21
(i) What kind of search: 21
(ii) Is the type of search justified? 22
(iii) Complying with the safeguards 22
CB: Lassanah 26
(1) Search without arrest | S 21 (power to search persons and seize and 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 | |
(3) Search after arrest: | |
Powers to search under a warrant are dealt with in classes 7 and 8.
Search without an arrest: s 20, 21, 21A, 26-28: H&J 1654-1656; 1658 to 1660, SM 87-95
1 s 201 safeguards | 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 |
2 reasonable suspicion of possession of something in s 21(1)(a)-(d) | 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: -
Stole something: A person has something stolen or unlawfully obtained in their possession or under their control: s 21(1)(a) then PO’s can seize all/part of thing reasonably suspected to be stolen: s 21(2)(a) 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. -
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) 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 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. Person controls a dangerous article in a public place used as above: s 21(1)(c). person has in his or her possession 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, 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...
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