Police Powers to Search People, Premises, Luggage and Vehicles. It is very common for the police to search properties and persons to help their investigation. This does not make all searches made by the police to be legal as there are guidelines that must be followed. That’s what we want to review in this post.
Searches are carried out by the police with a view to discovering contraband, illicit or stolen property, or some evidence of guilt to be used in the prosecution of a criminal action for some other crime or offence with which he is charged.
For a search to be legal, a search warrant must be issued. A search warrant is a legal document authorizing a police officer or other official to enter and search the premises.
The Administration of Criminal Justice Law, The Criminal Procedure Act and the Criminal Procedure Code provide that a search warrant must be issued by a magistrate, judge or justice of the peace (only under CPC).
The warrant of arrest must be signed or sealed by whoever issues it.
For a warrant to be valid the following must be contained in it:
a) It must be in writing
b) The date of issue
c) The name or description of the offender
d) A statement of the offence for which it is issued
e) It must direct the person to whom it is issued to arrest the suspect
f) It must be signed by a Magistrate or a Judge.
A search warrant may be issued and executed on any day including a Sunday or Public holidays. A search warrant must also shall be executed between the hours of 5am – 8pm except the issuing court in its discretion authorizes the execution of the warrant at any other time.
However, a Magistrate may authorize that a search warrant may be executed at any other time other than 5am – 8pm, either at the time the search warrant was issued or at any time before the search warrant is executed.
A magistrate may also authorize the execution of a search warrant at any time in order to meet the exigency of a particular case. Vessels used for smuggling at night or houses of ill repute or immorality may therefore be searched at odd hours, when they usually operate.
The police also has the power to search private individuals without a warrant. Customs officials have same power to search any person reasonably suspected of carrying anything chargeable with duty with intent to evade payment of duty, or any person carrying any articles, the importation or exportation of which is prohibited, provided the person is within a customs area.
There are also rules governing search of a person. A woman can only be searched by another woman, and such search must be with strict regard to decency.
However it should be noted that this is as regards to her body only, for a man can search her bag, purse, etc. Also, there is no statutory provision that a man cannot be searched by a woman but what is in practice is that a man should be searched by a man (not a woman) with strict regard to decency.
Before searching a property, the police must produce a search warrant, except where a person to be arrested under a warrant of arrest is suspected of being within the premises, the premises may be searched for the person to be arrested without a search warrant.
For a search warrant to be legal, it must be conducted in the presence of two respectable inhabitants of the neighborhood summoned by the person to whom the search warrant is addressed. However, a Court or Judge may waive this provision when issuing the search warrant where the circumstances of the case so requires.
Before a search warrant is executed on a person, premises or thing, the warrant must be shown to the person, occupier or person in control of the thing. The body of the person who intends to conduct the search which is the police will then be searched by the person named in the warrant to ensure that nothing is planted on his property.
There is a special consideration given to women in Purdah under Islamic law in the Criminal Procedure Code. if any place to be searched is an apartment in the actual occupation of a woman, who is not the person to be searched, but who according to custom, does not appear in public, the person making the search shall, before entering the apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then enter the apartment.
This is intended to protect the privacy of women of the Muslim faith. However, where search warrant is to be executed on a woman, the search must be by another woman irrespective of her culture or religion.
Where free ingress (entry) is not allowed to the person executing the search warrant, the person may break into and enter such premises in order to execute the search warrant. This is however, allowed only when the police officer has reasonably tried to gain entry peacefully and such entry has been denied him.
The position of the law is that where a person by his complaint set the law in motion against another, he will be liable to that person in court.
Where a police officer searches a premises armed with a search warrant, the person who laid a complaint before the police officer (on the basis of which the police officer lays an information before a magistrate to obtain a search warrant) may render himself liable in damages to the person against whom the complaint is laid.
The complainant would be held liable in damages for malicious procurement of a search warrant if he had no reasonable cause to believe in the complaint laid by him.
This is awfully common today, any such person that reports another to the police for being in possession of illegal property maliciously and causes him to be searched and detained without finding any such property will be liable to pay damages, public apology and compensation to the person in conjunction with the provisions of the constitution of the federal republic of Nigeria
From the Same Author: Know Your Rights: The Use of Police for Debt Recovery is Unlawful in Nigeria
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