The trespass onto your property without invite is a shocking and upsetting phenomena; indeed it is one of the ingredients of the offence of burglary and yet the state represented by a slew of investigating bodies has a number of powers with which they are able to achieve this and they are known as searches. Indeed the courts have recognised that a search of somebody’s property is a severe interference with individual liberty (R(Chatwani) v NCA ). This is hoped to be a limited guide as to why and how they are able.
Perhaps it is your home and your car which are likely to be the most common subjects of such searches. The most common of these powers are found under the Police and Criminal Evidence Act 1994 (PACE).
Can the police search my car?
Police officers in uniform have the power to stop a motor vehicle on a road and ask the driver to produce any of the following; driving licence, an insurance certificate, a test certificate
A police officer can stop and search a vehicle, for example if s/he suspects that it contains stolen property or drugs. Police officers have the power to set up a road check and stop all vehicles or selected vehicles on any road.
Can the police search my house?
In general the police do not have the right to enter a person’s house or other private premises without their permission.
However, they can enter without a warrant:
- when in close pursuit of someone the police believe has committed, or attempted to commit, a serious crime (S.17 PACE), or
- to sort out a disturbance, or
- if they hear cries for help or of distress, or
- to enforce an arrest warrant (S.17 PACE), or
- if invited in freely by the occupant, or
- under various statutes which give the police powers of entry into a number of different kinds of premises.
If I am arrested, can the police search my house without a warrant?
In terms of that person’s property/premises if the offence for which s/he has been arrested is an indictable offence (that is an offence that can be tried at either the Magistrates Court or the Crown Court) under s 32 PACE the police are able to enter and search any premises in which s/he was when arrested or premises which they were at immediately beforehand and seize items related to the matter for which they were arrested, which may be a weapon if there is an allegation of violence or documents in a Fraud.
There are checks on police powers in that a constable may not search premises in the exercise of this power unless s/he has reasonable grounds for believing that there is evidence for which a search is permitted. Where there are two or more dwellings/homes police powers are limited to:
(a) any dwelling in which the arrest took place or in which the person arrested was immediately before his arrest; and
(b) any parts of the premises which the occupier of any such dwelling uses in common with the occupiers of any other dwellings comprised in the premises (so arguably a shared lounge could be searched but not individual locked bedrooms)
The power under s32 also extends to the search of vehicles and to premises which are not premises of the person who has been arrested (so if a friend is arrested in your home the police may be able to search your home) but s32 would not allow the police to say search the premises if your friend was arrested elsewhere and was not at your home immediately before his arrest.
Once the police have left your premises they would not be permitted to return to affect another search later.
There are circumstances in which the police have not searched premises at the time of arrest but are subsequently conferred powers which enables them to do so under s18 PACE. This will happen whilst the person who has been arrested is still at the police station. The police may enter and search any premises occupied or controlled by a person who is under arrest for an offence that can be tried either at the Magistrates Court or the Crown Court if s/he has reasonable grounds for suspecting that there is on the premises evidence that relates:
(a) to that offence; or
(b) to some other similar offence which is connected with or similar to that offence.
If that criteria is made out the police may seize and retain anything relevant and this power to search is only a power to search to the extent that is reasonably required for the purpose of discovering such evidence. Finally only an inspector can authorise the use of such powers on the criteria above so the investigating officer cannot simply decide to execute such searches after arrest.
There are exceptions to the rule above in particular circumstances as set out under S.18(5) and (6) of PACE but these are rarely used and although an inspector’s consent is not required they must be informed afterwards and a proper record of the search kept.
S.17 PACE sets out the circumstances in which the police can affect entry to premises without a warrant in order to make an arrest and covers some summary offences (offences that can only be tried in the lower Courts) unlike S.18 and S.32.
What is the protocol for the police gaining a warrant to enter and search a premise?
The main power for entry and search is contained within S.8 of PACE with S.15 setting out the safeguards and S.16 the procedure on carrying out the search after the warrant has been granted. Should a warrant be properly prepared in accordance with S.15 a District Judge or a Justice of the Peace can issue a warrant to enter and search a premises if they have reasonable grounds for believing:
(a) that an indictable offence has been committed; and
(b) that there is material on the premises which is likely to be of substantial value to the investigation of the offence; and
(c) that the material is likely to be relevant evidence; and
(d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and
(e) that any of the conditions specified in subsection (3) below applies.
The subsection 3 criteria is:
(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;
(b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence;
(c) that entry to the premises will not be granted unless a warrant is produced;
(d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the remises can secure immediate entry to them.
Premises includes, and this is not an exhaustive list, vehicles and tents or other moveable structures.
There are 2 types of warrants that can be issued, the first limited to a single and specific premises and the second an ‘all premises warrant’ that would relate to all premises occupied or controlled by the person under investigation and can extend to those premises not yet even identified by the police although there are additional safeguarding previsions in place and set out in S.8(1B) and S.16(3) that a District Judge would have to have regard to before issuing the warrant.
Having obtained the warrant it must be executed within 3 months and usually at a reasonable hour. The officers intending to conduct the search must be in uniform or have their warrant cards on their person and must produce a copy of the search warrant. Where no one is present a copy of the warrant must be left in the premises after the search. During the search, the police may seize and retain items that have been obtained in the commission of an offence, or where an item is evidence in connection with an offence and to prevent it being concealed, lost, altered or destroyed.
There are similar powers within other statutes including s23 of the Misuse of Drugs Act and s42 Terrorism Act 2000 but the powers above are the most prevalent.
What can I do if my property has been searched?
This is by no means a full treatment of the State’s powers but if you think your rights have been infringed or feel violated your best course of action is to speak with a criminal solicitor.