By Eloghene Adaka, Esq.
A search is defined in the case of ENIYINNAYA v STATE (2014) LPELR. 22924 (CA). The court held that a search involves police actions designed to find, ascertain, or discover evidence of crimes and sometimes arrest of fleeing suspects of a crime. Common targets of searches include homes, documents, personal effects, and persons suspected of criminal involvement. According to Section 37 of the 1999 Constitution (as amended), “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”Section 45(1) of the 1999 Constitution (as amended), however, provides for the restriction and derogation from the aforementioned rights in certain circumstances. In other words, a search cannot lawfully be done unless there is a law permitting that it be done and that law complies with section 45(1) of the Constitution of the FRN.
A search can be done on (a) a person, (b) premises, or (c) things.
The main purpose a search is carried out is to obtain evidence of a crime which has been committed or about to be committed.
SEARCH OF PERSONS
A search on a person can be carried out without a search warrant. Section 29 of the Police Act provides that a Police Officer can detain and search any person whom he reasonably suspects to have anything in his possession, which the officer has reason to believe, may have been stolen or otherwise unlawfully obtained.
The power of the police to search, however, is not absolute. There has to be a reasonable suspicion that the person has stolen or has unlawfully obtained property in his/her possession. The test to decide what is reasonable is sometimes referred to as the ‘objective test’ i.e. whether a reasonable man would have conducted the search of a person in the circumstances.
Also, Section 9(1) of the ACJA (Administration of Criminal Justice Act ) and Section5(1) of the ACJL (Administration of Criminal Justice Law,Lagos) provides that, “A Police Officer making an arrest or receiving an arrested person who was arrested by a private individual, may search the arrested person or cause him to be searched.”It also states that the Police Officer can use such reasonable force as is necessary to conduct the search. See section 5(1) ACJL; section 6(1) CPL; and section 44(1) CPCL. After the search is conducted, a Police Officer shall place in safe custody all the exhibits recovered from the person searched, except his necessary wearing apparel.
The law permits medical or scientific examination of any person reasonably suspected of concealing incriminating item in any latent part of his body on the request of a Police Officer. However, where no such medical practitioner is procurable, then the Police Officer or any person acting in good faith in aid and under the direction of the Police Officer may conduct the medical examination. This is in accordance with Section 5(6) ACJL, 11 ACJA, and Section 4(4) NDLEA Act.
Where a search is to be carried out on a woman, the ACJL provides in Section 5(2) ACJL that whenever it is necessary to search a person, the search shall be conducted by a person of the same sex with due regards to decency. Thus, a man is to be searched by a man and a woman is to be searched by a woman. However, the ACJA has a slight variation and provides that a search can be carried out by the opposite sex in the urgency of the situation as it provides in Sections 9(3), 149(3) ACJA, unless the urgency of the situation or interest of justice makes it impracticable for the search to be carried out by the person of the same sex.
However, by section 5(3) ACJL and section 6(3) CPA, the limitation on the search of a woman is only limited to her person and does not apply to the things she is carrying like her handbag, briefcases, wallet etc. See Section 5(3) ACJL and Section 6(3) CPA, 9(4) ACJA.
SEARCH OF PREMISES
The general rule as it relates to search of premises provides that, premises cannot be searched WITHOUT a SEARCH WARRANT. Thus, any search of any premises without a search warrant is unlawful and a breach of Section 37 CFRN, 1999Constitution.
The exceptions to this rule are:
- Where a Police Oficer, acting under a warrant of arrest, or otherwise having authority to arrest, has reason to believe that the person to be arrested has entered into or is within any premises, the Police Officer can enter into the premises to search for the person to be arrested, notwithstanding the fact that he had no search warrant. See section 7 ACJL;12 ACJA.
- Presence of a Justice of the Peace: A Justice of the Peace may direct a search in his presence (his presence means a search warrant)—Section. 85, CPCL.
- Custom Officer: A Custom Officer may enter or break into a place where he reasonably believes that illegally imported goods are kept. Section 147 CEMA.
- An Officer of the NDLEA or Police Officer, in order to recover drugs kept in premises may enter and search such premises without a warrant of search. Section 32 NDLEA Act.
- Order of Court: Acting upon an order of Court for the release of an unlawfully abducted person.
- Reasonable Suspicion: If the Police or any other person who is executing a search warrant of premises reasonably suspects any person of concealing about his person, articles for which a search should be made, such a person shall be searched. Section, 112(3) CPL, Section 81, CPCL.
- Implied from a Warrant of Arrest: A warrant of arrest comes with an implied authority to search a person upon whom a search is to be conducted.
- The Nigerian Security and Civil Defence Corp do not need a search warrant to enter premises where there is a reasonable belief that government property is being unlawfully harboured. COMMANDANT GENERAL NSCD & ANOR V. EMASON UKPEYE, S. 3(1) – (3) Nigerian Security and Civil Defence (Amendment) Act 2001.
SEARCH OF THINGS
A search of things may be conducted with or without a search warrant. A Police Officer can stop and search vehicles on the road without a warrant as held in the case of KARUMA V. R (1955).An aircraft cannot be searched without a search warrant. A search warrant is needed in carrying out a search on a vessel.
Section 31 (1) on the Power of Enforcement Officers provides that where an Enforcement Officer believes in reasonable grounds that a vessel has contravened the provisions of the Act, the Enforcement Officer may stop and board the vessel and detain the vessel or its officers or both and with a warrant search the vessel and seize anything found in or on the vessel that the Enforcement Officer believes on reasonable ground shall afford evidence with respect to any contravention of this Act.
Powers of search of things without warrant is also conferred on Customs Officers, the Federal and State Task Forces of NAFDAC etc.
The police have a right to search phones and laptops; however this search can only be performed if a search warrant has been issued. If the Police Officer does not have a warrant to search your phone or laptop or any other electronic device, then any search carried out is an illegal one.
Contents of a Search Warrant are:
- Address of the premises to be searched;
- Items to be searched for;
- A directive that the items be seized and brought to Court;
- Signature of the person issuing it.
Who can Issue a Search Warrant?
There are four categories of persons that can issue a search warrant. They are a Magistrate, a Judge, a Justice of the Peace, and subject to some restrictions, a Superior Police Officer above the rank of a Cadet ASP.
1 By Section 104 ACJL and Section 107 CPL, a Magistrate or a High Court Judge can issue a search warrant. It is procured upon information on oath and in writing.
2 Under ACJA, section 144 provides that a Judge, Magistrate or Justice of the Peace may issue a search warrant upon information on oath and in writing.
3 A Police Officer above the rank of a cadet ASP can issue a search warrant in limited circumstances. Section 28(1) of Police Act which provides that a superior Police Officer may by authority under his hand, authorise any police officer to enter into any premises in search of stolen property and he may search therein and seize and secure any property he may believe to have been stolen. Section 28(1) Police Act. The term “superior Police Officer” is defined by section 2 of Police Act as a Police Officer above the rank of Cadet ASP. Therefore, any person below that rank is not a superior Police Officer and cannot issue a search warrant.
A superior Police Officer can only issue a search warrant where the premises to be searched is, or within the preceding twelve (12) months has been in the occupation of any person who has been convicted of:
(a) Receiving stolen property.
(b)Harbouring thieves, any offence relating to fraud or dishonesty, and punishable by imprisonment.
It is clear that the power of the police to issue a search warrant is limited both in terms of the persons who can issue it and the instances where it can be issued.
When can a Search Warrant be Issued or Executed?
A search warrant can be issued or executed on any day including a Sunday and a public holiday and may be executed between the hours of 5:00am and 8:00pm, but the court may, in its discretion, order that the warrant be executed at any hour. See section 108(1) ACJL; section 111(1) CPA.
By virtue of section 148 of ACJA, a search warrant may be issued and executed at any time and day including on Sunday or on a public holiday.
Seizing Goods not Specified in the Search Warrant
Generally, only items specified in the search warrant should be seized. However, where the officer executing the search warrant comes across incriminating items which he reasonable believes to have been stolen or are relevant in respect of other offences, he can lawfully seize them. Upon seizure, all the things seized should be taken to the person that issued the search warrant.
Civil Liability for Wrongful Procuration of a Search Warrant
A Police Officer or a law enforcement officer who obtains any item through an illegal search and not being relevant to the criminal charge against the person searched may be liable in damages to the aggrieved person in a civil suit. ELIASv. PASMORE.1934 2KB He will be liable for the MALICIOUS PROCURATION OF A SEARCH WARRANT. However, there is NO LIABILITY if the complaint was made in good faith. Fowler v Doherty J.I.C.Taylor.
Eloghene Adaka Esq is a weekly columnist on Legal Corner with NIGER DELTA TODAY (NDT). She can be reached at email@example.com for further clarification or questions on legal issues.