SEARCHES1. THE BASICS

2. SEARCHES WITH A WARRANT3. SEARCHES WITHOUT A WARRANT

The BasicsLook at Article 31 (a) of the

Constitution. It specifically provides that every individual has the right not to have their person, home or property searched.

However, as per article 24 this right can be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society.

In Chic Fashions Ltd. V. Jones Lord Denning held, “No man’s house is to be used as a hiding place for thieves or receptacle for stolen goods. If there is reasonable ground to believe that there are stolen goods in the house, information can be laid before a magistrate on oath and the magistrate can then issue a warrant authorizing a constable to enter the house and seize the goods.”

One of the most important tools in the prevention, investigation and detection of a crime, and the collection and gathering of evidence is a search warrant.

A search warrant is an order in writing, issued by a judge or judicial officer, commanding a law enforcement officer to search a specified person or premises for specified property and to bring it before the judicial authority named in the warrant.

SEARCHES WITH A WARRANTLook at section 118 of the CPC. Also, look at section 19 of the Police Act.What are the requirements that must be

met before a warrant can be issued? According to section 19 a lawful complaint is required while under section 118 there must be proof on oath that for the purposes of conducting an investigation or obtaining evidence it is necessary to issue the warrant.

Contents and duration of a search warrantLook at section 102 of the CPC. Some

of the contents include:i. Signature of the judge or magistrate

as well as the seal of the courtii. The offence with which the person,

place or thing being searched is related.

iii. Name and description of the person, place or thing to be searched.

iv. An order directed to the executor of the warrant to seize the products and produce them in the court issuing the warrant or any other court with jurisdiction.

According to section 102(3) a warrant shall remain in force until it is executed or cancelled by the court issuing it.

Execution of a search warrantWhat happens when there is no

police officer immediately available? Can the warrant be executed by some third party? Look at section 104, 105 7 106 of the CPC.

Is there a restriction on the time and/or place during which a search warrant can be executed? Look at section 109 and 119 of the CPC.

Once issued with a search warrant the executor can compel any owner or resident of a building to allow him access to conduct the search. However, he must produce the search warrant to validate his entry. Look at section 120 of the CPC.

Extension of a warrantNote that where a police officer enters a

house pursuant to a warrant he may not only seize goods in respect of the warrant but also any other goods which he believes on reasonable grounds to be material evidence.

Additionally, searches on a person can only be justified where there is reasonable suspicion that the person has concealed an article for which search should be made. Look at section 127 of the CPC.

Search warrants and Privileged materialCan an accused person (or his spouse, or

attorney) be compelled to submit privileged documents pursuant to a warrant validly issued under section 118 of the CPC?

What if the documents are in the possession of a third party? Can the third party claim privilege and refuse to submit the documents on the ground of privilege?

In which situations will the privilege be defeated?

Look at sections 127, 130 and 134 of the Evidence Act.

In the above mentioned cases, an officer with a valid search warrant can be able to carry out a search of what would otherwise be privileged documents.

What happens to articles seized pursuant to a search?Look at section 121 of the CPC.Property seized pursuant to a search

may and will be detained until the conclusion of the investigation, or any trials and/or appeals.

Once this is done the thing may be restored to the person from whom it was taken or otherwise disposed of.

In Ghani v. Jones the court identified guidelines to justify the taking and retaining of an article pursuant to a search warrant:

i. Reasonable ground to believe that a serious crime has been (or is about to be) committed.

ii. Reasonable ground to believe that the article taken is a fruit of crime, instrument by which crime was committed or material evidence to prove the commission of a crime.

iii. Reasonable ground to believe that the person in possession of it is involved in the crime.

SEARCHES WITHOUT A WARRANTCan Police officers carry out searches

of premises or persons without a warrant? What is the risk of doing so?

Look at section 26 and 22 of the CPC.Issues of illegally obtained evidence

may arise in these cases, and the court may exercise its discretion to exclude evidence obtained without a valid search warrant.

Reasonable suspicionIn these cases the prosecution must satisfy

the court that there was reasonable suspicion BEFORE the person, vehicle e.t.c. was stopped and searched. Suspicion must precede the stopping. Suspicion arising after stopping may render the police action illegal.

The decision must be based on objective grounds such as the time, place and behavior of the suspect and information from other witnesses.

Personal factors alone (such as a person’s age, color, previous convictions or dress), or stereotypes of the kinds of people likely to be in possession of certain kinds of articles cannot justify a decision to search.

If a police officer searches a person without their consent or reasonable grounds for suspicion the search is unlawful even if it reveals items of the kind for which the search was made.

Consensual searchesIn what circumstances would an

individual consent to a search when the police do not have a warrant?

Stopping and searching people with their consent has always been lawful at common law. Consensual searches are however problematic because of the power imbalance between the police and ordinary citizens.

There is a risk that occupiers may be improperly pressured to give consent or may not realize that they have nay right to refuse.

Routine searches at such places as entrances to malls or to airports may be justified on this ground as a precondition to entry.

DelayA search without warrant is also allowed

in situations where the search requires a warrant but any delay would defeat the purpose of the warrant since evidence would have been destroyed or relocated elsewhere.

An example would be a situation where there is reason to believe that a particular person or chattel poses an imminent danger to the public.

Search of arrested personsAs per section 25 of the CPC a person

arrested with or without warrant may be searched by the responsible officer. All articles other than necessary wearing apparel found on the arrested person must be placed in safe custody.

In this case the search of the arrested person is conducted without a warrant specifically to that effect.

Look at the case of The Standard Newspapers Ltd and others v. The Attorney General and others (Petition 113 of 2006) for an interesting discussion on search and seizure Laws in Kenya.

Additionally, look at the case of Alex Mautia v. R (Criminal appeal no. 42 of 2012).

Finally, look at the case of Abubakar Sharriff Abubakar v. AG (Constitutional petition no. 82 of 2012)