What is the position of the law?
BY OMEN MAFA
The police launched the Anti-drug blitz wherein, they recovered over 60 kgs of dagga and other various dangerous drugs in Masvingo only on the 6th of February 2023.
Whilst we celebrate that important campaign, the question that has exercised the mines of the citizens is whether or not it is legal for the police to conduct such searches without a warrant.
In terms of the Criminal Procedure and Evidence Act, generally police can only conduct a search when they are armed with a search warrant. The warrant authorises the police officer to search any person identified in the warrant or to enter and search premises identified in the warrant or within an area identified in the warrant, and to search any person found there.
A search warrant must state whether it is to be executed by night (if that is the intention);otherwise it may be executed only by day, describe precisely the premises or persons to be searched – though the premises can be described as being within an area identified in the warrant; and specifically state the articles to be searched for. If the warrant is phrased only in general terms, it will be invalid.
A warrant should also specify the alleged crime that gives rise to its issue, and the alleged offender; failure to do so will invalidate it.
Wherever possible, searches should be conducted in terms of a warrant, because the procedure of obtaining a warrant serves to protect, to some extent, the rights of the individual. The law does, however, permit searches to be conducted without a warrant in certain circumstances.
A police officer (not a peace officer) may however search a person, container or premises for the purpose of seizing an article referred to in section 49 of the Criminal Procedure and Evidence Act without a warrant:
- with the consent of the person concerned;
- if the police officer believes on reasonable grounds that a search warrant would be issued to him if he applied for one, and that delay in obtaining a warrant would prevent the seizure of the article or defeat the object of the search.
A police officer who conducts a search in the second of the above circumstances (i.e. without consent) must, if asked by anyone whose rights are affected by the search, inform that person of his or her name, rank and force number and of the reasons for carrying out the search without a warrant. If the police officer fails to do so, he or she will be guilty of a crime and liable to a fine of level 4 or up to three months’ imprisonment.
A private person may not normally search people except as part of an arrest, but an occupier of land may search any premises or person on the land if he reasonably suspects that stolen stock or produce, or illicit drink, drugs, firearms, ammunition or explosives are in the premises or under the control of the person concerned. He may do so, however, only if a police officer is not readily available.
Both police officers and private persons may search premises in order to find and arrest a suspect whom they are authorised to arrest, if they know or suspect the person to be in the premises.
A police officer investigating a crime may enter premises without a warrant for two reasons. Firstly, to interrogate and take a statement from a person whom he reasonably suspects is on the premises and can give information about the crime. He may not, however, enter a dwelling for this purpose without the occupier’s consent. Secondly, a police officer of or above the rank of inspector may enter premises to inspect books, documents or records and may make copies of them. He may not, however, take possession of them without a warrant. A police officer who exercises these powers must, on demand by anyone whose rights are affected by the powers, inform the person of his or her name, rank and force number and the reasons for exercising the powers. An officer who fails to do so is guilty of a crime and liable to a fine of level 4 or imprisonment for up to three months.
A police officer who seizes or removes articles following a search without a warrant must issue a receipt for them and give it to their owner or possessor; a police officer who fails to do so is guilty of a crime and liable to a fine of level 4 or up to three months’ imprisonment.
Force may be used to effect a search without a warrant in the same circumstances and to the same extent as in the case of search with a warrant.
What has been said above is laid down in the Criminal Procedure and Evidence Act [Chapter 9:07]. Other statutes confer powers of search on particular officers, for example customs officers (the Customs and Excise Act), parks officers (the Parks and Wild Life Act) and drugs inspectors (the Dangerous Drugs Act). This last Act – the Dangerous Drugs Act – goes further and actually limits the power of police officers. Only police sergeants or more senior officers may search persons and premises for dangerous drugs; police constables may do so only if authorised to do so in writing by a more senior officer.
Evidence obtained as a result of an unlawful search is inadmissible if its admission would render the trial unfair or would otherwise be detrimental to the administration of justice or the public interest.
Omen Mafa is a registered legal practitioner, practicing as such under the style Mutendi, Mudisi & Shumba legal practitioners, LLM (Corporate and Commercial Law) (MSU)(Candidate). omenmafa9@gmail.com
