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Police search: know your
rights
Last modified: Fri Jul 9 13:59:48
2004
The power of the police to carry out searches - of people or property
- has undoubtedly increased over the last few years. This is
particularly true of `random' stop-and-search operations. In reality,
however, more people are searched because they don't know when they have
a right to refuse, than are searched under the exercise of specific
police powers. It isn't entirely unheard of for police officers to allow
people to conclude that powers of search are more extensive than they
really are.
This article explains the circumstances in which the police may
lawfully search you, or your car, or your home, and the formalities
which they must observe in doing so.
Disclaimer
This article is written for general information only. It does not
purport to be exhaustive or authoritative. To the extent that it applies
at all, it only applies to England and Wales, as the legal position is
somewhat different in Scotland and Northern Ireland. In addition, it
covers only the rules regarding search of the person, vehicle, and home;
it does not even attempt to consider search of business premises, boats,
railways, or the large number of other situations that lawyers are
supposed to know about. Anyone who believes he or she has been subjected
to an unlawful search, or is accused of conducting an unlawful search,
should seek specialist legal advice.
Note
In this article, statutory provisions are shown like this: [s32 PACE],
meaning `Section 32 of the Police and Criminal Evidence Act (1984)'. A
list of abbreviations is given at the end of the article.
Legal background
In English law, any interference with your personal liberty beyond, say,
a tap on the shoulder, is prima facie unlawful. Similarly, it is
a trespass to enter another person's home without that person's
permission, or to interfere with another person's property. This applies
as much to the police as it does to anyone else. It follows that unless
a right to stop and/or search is granted by a specific legal provision,
the search will be unlawful.
Because the police have to have some way to go about their business
without being sued every day, English law provides that there are
certain circumstances in which a `constable' is permitted to search you,
your car, or your house. In law, a `constable' is any policeman or
woman, of whatever rank, and I will use the same term here for brevity.
In general, a constable is allowed to use `reasonable force' to carry
out a lawful search. The search will be unlawful if it is not carried
out in the proper way, or outside of the specific powers that the law
provides. You are entitled - in theory - to use `reasonable force' to
resist an unlawful search. I wouldn't advise it, however, because very
often the legality of a search cannot be determined until there has been
a court hearing, and if it goes against you, you'll be looking at a
conviction for `assaulting a constable in the execution of his duty' in
addition to any other problems you may have. In any case, the constable
is only doing his or her job, and doesn't deserve an outburst of
violence just because his interpretation of the law turns out to be
different to yours.
Your principle reasons for wanting to show that a search was unlawful
are (i) to support a claim for damages against the police, and (ii) to
ask the court to exclude any evidence that the search revealed. However,
while a claim for damages will very often succeed, evidence gathered
from an unlawful search will not necessarily be rejected by a court; on
the whole UK courts find the `fruit of the the poison tree' quite
palatable. The likelihood of unlawfully-obtained evidence being excluded
depends on the extent and flagrancy of the illegality.
Stop-and-search operations in public
There is no doubt that a constable is allowed to approach you in the
street and ask questions. One of those questions might be whether you
will give your consent to being searched. The constable is not obliged
to explain your legal rights to you, but in essence you can freely
refuse your consent if you wish. You should be aware that if you do
consent, then it appears that the legal safeguards relating to
acceptable search procedures will then cease to apply. For example, a
search made under police powers will be unlawful if certain formalities
are not met. However, a search made with your consent will be lawful
whether they are met or not.
If you do not consent, then the constable will have to do one of
three things: (i) give up; (ii) arrest you (which is a subject dealt
with later), or (iii) invoke one of the specific grounds under which a
stop-and-search is permitted. You can't be arrested for refusing to
consent to a search that would otherwise be unlawful. Well, that's not
quite true: you can be arrested, but the arrest itself would be
unlawful.
Stop-and-search operations usually take place in the street, although
the specific powers can usually be exercised in any public place.
Although a `public place' is defined slightly differently in different
legal provisions, it is generally safe to assume that it includes
everywhere except your own home and its grounds, and other private
dwellings you have a right to enter. Therefore, although a constable is
not permitted to search you for stolen goods in your own back garden, he
is permitted to search you for stolen goods in someone else's back
garden, if you don't have a specific right to be there.
The general stop-and-search provisions are as follows. Unless stated
otherwise, a search warrant is not required. Note also that although a
constable in uniform is permitted to stop your vehicle and demand your
name and address, this does not extend to a general right to
search you or the vehicle unless one of the following applies.
- A constable may stop you and search you, and any vehicle you are
driving, if he has reasonable grounds to suspect that you are
carrying a firearm, for whatever purpose [s47 FA]. The meaning of
`reasonable grounds' will be discussed later. In a claim for damages
against the police, the onus will be on the constable to demonstrate
that he did have reasonable grounds.
- A constable may stop you and search you, and any vehicle you are
driving, if he has reasonable grounds to suspect that you are in
possession of a controlled drug [s23(2) MDA].
- A constable may stop you and search you, and any vehicle you are
driving, if he has reasonable grounds to think that you have in your
possession implements that you intend to use to effect a burglary or
other theft [s1(7) PACE].
- A constable may stop you and search you, and any vehicle you are
driving, if he has reasonable grounds to think that you have in your
possession stolen goods [s1(2) PACE].
- A constable may stop you and search you, or any vehicle you are
driving, if he has reasonable grounds to think that you have in your
possession an offensive weapon [s1(7) PACE]. In this case, an
offensive weapon is `anything made or adapted for causing injury' or
`intended to be used for causing injury'. The designation `offensive
weapon' therefore can be, and has been, applied to a screwdriver.
In all these cases, the search will be unlawful if the constable cannot
demonstrate reasonable grounds for making it.
Random stop-and-search
In general, a police constable may not search you without your consent
in the hope that he will find something to justify the search. Nor may
he search you to deter other people in the vicinity from carrying
prohibited articles. There are, however, a number of situations in which
`random' stop-and-search is lawful. The scope of random stop-and-search
has increased recently, to the consternation of civil liberties
campaigners. All these provisions require the authorisation of a senior
police officer, and last for a limited time. The regulations governing
the duration of the authorisation are complex, and depend on the
seniority of the police officer giving authorisation, so I won't discuss
them in detail here. In all cases you are entitled to a statement in
writing showing the power under which the search was made and by whom it
was authorised.
If authorised by a senior police officer, for a period of 24 hours, a
constable may search you and your vehicle for offensive weapons,
regardless of whether he has reasonable grounds for believing that he
will find any. However, the person who authorises the search must
have reasonable grounds to believe that serious violence is likely to
occur, or that weapons are being carried, in a particular locality [s60
CJPOA]. Again, the onus is on the authorising officer to show that his
believe was justified. A constable may lawfully demand that you remove
any item of clothing that he has reasonable grounds to believe you are
using to conceal your identity.
If authorised by a senior police officer, for a period of up to 28
days, a constable may stop and search any person or vehicle for
anything that may be used in connection with terrorism [s43 TA].
This is a far-reaching power, and its use must be notified to the Home
Secretary, who is empowered to cancel it. Although the constable
conducting the search need not have reasonable grounds for believing he
will find anything, the person authorising it must believe it to be
necessary for the prevention of terrorism.
Other grounds for a stop-and-search procedure
For the sake of completeness it should be noted that there are a huge
number of specialised, archaic and/or rarely-used powers to stop and
search, as well as those discussed above. For example, you can lawfully
be stopped and searched for dead badgers, wild birds' eggs, or poached
game, if a constable can demonstrate reasonable grounds for believing
that he will find any. Special provisions apply to search for alcoholic
drinks at sports grounds, crossbows, and imported goods on which duty
has not been paid.
General regulations for stop-and-search procedures
In general, a constable who is not in uniform is required to show
documentary evidence that he is a constable, whether or not you ask to
see it [s2(2) PACE]. The search will be unlawful if this isn't done.
Whether he is in uniform or not, a search will be unlawful unless the
constable tells you his name and police station, what he is looking for,
and what grounds he has for thinking he will find it (there are a few
specialised cases where the constable does not have to give his name,
but I don't propose to deal with these here. They are mostly concerned
with investigation of terrorist offences) [s2(3) PACE].
A constable who is not in uniform is not empowered to stop you
if you are driving a vehicle [s2(9) PACE] (how would you know he was a
constable anyway?).
There is a Code of Practice relating to stop-and-search procedures
that the police are required to follow (`Code A'). This code states, for
example, that the constable should conduct the search in a way that
minimises indignity and, where possible, out of public sight. A search
should be no more intrusive than is necessary to find the object sought
and, if it involves removal of more than outer garments, must be carried
out by a person of the same gender. However, Code A does not have
the force of law. Although a court may be persuaded to exclude evidence
obtained in flagrant breach of Code A, such a breach does not in itself
give rise to a claim for damages.
Search of premises
Except for anti-terrorist operations, unless you are arrested (see
below) there are very few grounds on which a constable can enter
your home to conduct a search without a search warrant from a
magistrate. Even where there is a power to enter premises -- for example
to prevent a breach of the peace -- this does not confer a power to
search.
As far as anti-terrorist measures are concerned, if authorised by a
senior police officer, a constable may enter your home without a warrant
to search for materials that may be used for terrorism [s37 TA]. This
power of search is subject to the same controls as anti-terrorist
stop-and-search procedures. In particular, its use must be notified to
the Home Secretary, and the authorising officer has to have reasonable
grounds that it is necessary to prevent terrorism.
In most other circumstances a search will be unlawful without a
warrant, unless you consent to it. A magistrate has a general power to
issue a search warrant against your home if he or she reasonably
believes that (i) a `serious arrestable offence' has been committed; and
(ii) evidence relevant to the investigation of that offence is likely to
be found there; and (iii) there is no other way to gain access except
with a warrant. There are also technical restrictions that may not be
very relevant; for example, the magistrate must have reasonable grounds
for believing that material sought is not protected by legal
professional privilege.
A `serious arrestable offence' is, in essence, one that results in
death or serious injury, rape, kidnapping, or serious financial loss. It
follows that a magistrate may not issue a search warrant to search for
evidence of minor thefts, for example.
Magistrates also have specific powers to issue search warrants in
respect of, for example, offensive weapons [s142 CJA], nuclear weapons
(!) [s52 ATCSA], dangerous chemicals [s66 ATCSA], hidden terrorists [s42
TA], firearms or imitation firearms [s46 FA], and controlled drugs [s23
MDA].
In all cases, the magistrate is expected to grant the warrant only if
there are reasonable grounds to believe that the sought articles are
likely to be found. However, it is not uncommon for the police to ask
for, and get, a warrant to search for a broad range of articles, e.g.,
`electrical items'.
A search warrant is normally valid for one month after issue; it
cannot be lawfully executed if this time period has expired.
Search of the person other than in public
In general, a specific warrant from a magistrate is required before a
constable can enter your premises to search you. Unless it states
otherwise on the warrant itself, a warrant to search your premises does
not give the constable the right to search any person therein.
Lacking such a warrant, the constable will either have to (i) give
up, (ii) arrest you (see below), or (iii) invoke one of the small number
of provisions which allow him to enter your property to search you. For
example, a constable may enter any premises to search you if he has
reasonable grounds to believe that you are in possession of a a firearm
that you intend to use for criminal purposes, or you are trespassing
while in possession of a firearm. Note that `firearm' here includes
imitation firearms.
The meaning of `reasonable grounds'
Many of the statutory provisions allowing a power to stop and search
require that the constable have `reasonable grounds' to believe that the
search will reveal something. In theory, in a claim for damages against
the police the constable will have the onus of demonstrating what the
reasonable grounds were. `Reasonable grounds' is, of course, not a
well-defined concept. However, Code A does assist by providing some
examples of what may, and may not, constitute reasonable grounds for a
search.
Acting covertly or warily, or attempting to conceal articles from the
police, or carrying implements that might be used for burglary in an
area where a number of burglaries have already occurred are
reasonable grounds to stop and search.
Needless to say, ethnicity, hairstyle, accent, or clothing will never
constitute reasonable grounds. However, if it appears that members of
certain `gangs' dress in a particular way, or have particular insignia,
and if members of those gangs are known habitually to carry offensive
weapons, then clothing or insignia may constitute reasonable grounds to
search.
A belief that a search might produce reasonable grounds for a search
is not in itself reasonable grounds for a search. In other words, a
constable must not search you to attempt to find whether there is a
reason to search you.
Search after arrest
The regulations governing search are somewhat different if you have
actually been arrested for an offence. The criteria that dictate whether
an arrest is lawful or not are beyond the scope of this article.
However, one thing is certain: you cannot be arrested for refusing to
consent to a search which would be unlawful. You can be arrested if you
use force to resist a lawful search, but otherwise the constable has to
have reasonable grounds to believe you have committed an offence, or are
going to commit one, to arrest you (this is an oversimplification, but
this article is not about powers of arrest).
If you are arrested, a constable may search you, your vehicle, or any
building in which you are found, for articles related to the offence for
which you were arrested. In addition, you yourself can be searched for
articles related to any offence, not just the one for which you
were arrested. This power can only be lawfully exercised at the time of
arrest, not several hours later, and the constable must have reasonable
grounds for believing that such articles will be found [s32 PACE].
A constable may search you at the time of arrest for any article that
he reasonably believes makes you a danger to yourself or others, or
which he believes may assist you to escape from custody [s32 PACE].
If authorised by a senior officer, and if you have been arrested for
an `arrestable' offence, a constable may enter your home after the
arrest to search for articles connected with the offence, or similar
offences. The authorising officer must have reasonable grounds for
believing that the search will reveal such articles [s18 PACE]. An
`arrestable' offence is one for which the police have a power to arrest
without warrant.
If you are brought to a police station in custody, then a constable
is required to search you if this is necessary to make a full
list of your possessions [s54 PACE].
What can be searched
If you are searched in public the police do not have a right to insist
that you remove any clothing other than an outer coat, jacket, or gloves
[s2(9) PACE], or headgear that is believed to conceal your identity [s60
CJPOA]. Nor is there a general right to search you more than
superficially (e.g., pockets, shoes). This is true whether the search is
for proceeds of crime, bomb-making materials, or anything else. However,
if a search is otherwise lawful, you may be required to remove any of
your clothing out of public view (e.g., in a police station). Code A
states that a thorough search must only be carried out by a constable of
the same sex.
There are very limited circumstances in which an intimate search --
that is, a search of bodily orifices -- can be authorised. In
particular, it can be authorised if a senior police officer believes you
are concealing a weapon or a class-A controlled drug. To be lawful, the
officer must have reasonable grounds to believe that you are doing so,
and that it can't be found without an intimate search. It is unlawful to
carry out an intimate search for any item other than those mentioned, or
in any place except a police station or medical facility. A search of
your mouth is not considered `intimate' and is not subject to these
limitations.
Abbreviations
ATCSA: Anti-Terrorism, Crime and Security Act 2001
CJA: Criminal Justice Act 1988
CJPA: Criminal Justice and Police Act 2001
CJPOA: Criminal Justice and Public Order Act 1994
PACE: Police and Criminal Evidence Act 1984
MDA: Misuse of Drugs Act 1971
FA: Firearms Act 1968
TA: Terrorism Act 2000 |
