Search and Seizure

Question 1

What section provide for the search of items in the CPA?

Answer 1

Section 20 ( seized items are also referred to as ‘section 29 articles’

Question 2

The seized items must be? Hint: 3 situations

Answer 2

1. Concerned in, or are on reasonable grounds believed to be concerned in the commission or suspected commission of an offense.
2. Intended to be used, or are on reasonable grounds believed to be intended to be used in the commission of an offense.
3. May afford evidence of the commission or suspected commission of an offense.

Question 3

Which article may not be seized/

Answer 3

The only article that may be seized is a privileged document containing sensitive communications between attorney and client which falls within the protective ambit of legal professional privilege.

Question 4

Who issues the search warrant?

Answer 4

In terms of s 21(1)(a). The search warrant is issued by the magistrate, justice of the peace, judge, or judicial officer, from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or upon any the person or upon or at any premises within his area of jurisdiction;

Question 5

When can the search warrant be applied for?

Answer 5

A search warrant may be applied for During the investigation and Before the commencement of legal proceedings But it may also be applied for During court proceedings. (bench warrant)- Section 21(1)(b). (That particular article is required in evidence at the trial court proceeding)

Question 6

When may the judicial officer issue the warrant? (kinda like a repeat of card 4)

Answer 6

The judicial officer may issue the search warrant when convinced that there are reasonable grounds for believing that a particular article is in the possession of, under the control of, or upon any person and /or promises within the court’s area of jurisdiction. - s 21(a).

Question 7

How doe the judicial officer decide whether there are reasonable grounds for a search?

Answer 7

By exercising discretion similar to the discretion when granting bail, remanding a case, or sentencing an accused. The discretion must be exercised in an objective and reasonable manner, in accordance with the law while taking into account all the relevant facts.

Question 8

How is a search warrant issued?

Answer 8

Based on the information given under oath in the form of an affidavit handed to the issuing judicial officer by the official ( investigating officer with the help of the prosecutor) requesting the warrant.

Question 9

How is a search warrant executed?

Answer 9

Section 21(3) warrants are executed by day unless the magistrate issuing it specifically authorizes the cop to execute at night.

Question 10

How long does the search warrant last?

Answer 10

A warrant may be issued ANY DAY remains in force/valid until executed or canceled- Section 21(3)(b). ( A warrant issued in terms of s 29(6)(c) of the NPA act expires within 3 months from the day it was issued).

Question 11

Who can execute the search warrant?

Answer 11

Only a police officer can execute a search warrant- Section 219(2), authorize such police officers to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises.

Question 12

When can you search WITHOUT a warrant?

Answer 12

1. Section 22(a)- If the individual being searched consents.
2. If a police officer;
   (i) has reasonable grounds to believe that a search warrant will be issued if he or she applies for it, AND
   (ii) has reasonable grounds to believe that the delay in obtaining such a warrant would defeat the object of the search (i.e time taken in getting the warrant would lose the evidence).
3. Section 23 - Upon arrest of a suspect, by a police officer ONLY.

Question 13

Can private persons (pp) search the arrestee?

Answer 13

Private persons who arrest a suspect cannot search the arrestee- Section 23(1)(b) says ‘seize’ and not ‘search’.
Private persons can seize the section 20 article in possession of the arrested person- ONLY IF IN PLAIN VIEW. However there are exceptions in law!!!!!!!!!!!

Question 14

When can a private person search?

Answer 14

PP may search a person or premise if;
(i) If PP is the owner/occupier of the premises
(ii) If he/she suspects that stolen stock (cattle etc); illegal liquor; drugs, ammunition, or explosives is on the premises or in possession of a person,
(iii) If a policeman is not ‘readily’ available, the owner may enter and search premises/persons & may seize and hand to police officer/s.

Question 15

State security warrant?

Answer 15

Where state security is endangered- section 25

Question 16

When can police officers enter premise not for the reason of searching?

Answer 16

A police officer may enter any premises, without a warrant for the purpose of interrogating a person:
(i)Whom s/he reasonably believes has information of an offense;
(ii)If the suspect is on-premises (for the purpose of obtaining a statement.

Question 17

When does the police officer need consent without a warrant?

Answer 17

Police officer may not enter private dwelling without consent of owner (without a warrant); but can enter other premises e.g. like a business

Question 18

Can you use force to enter and search?

Answer 18

Section 27- If a cop has authority to lawfully search (ie has a warrant, or consent, or would have got a warrant, or has arrested suspect),
*may use force to overcome resistance to search or his entry to premises, BUT…
*Must first audibly demand entry, and give a reason why s/he wants to enter and search first;
*UNLESS by giving warning article would be destroyed; then need not give warning.

Question 19

Section 29

Answer 19

Search be conducted in a decent and orderly manner- a woman may be searched by a woman, if there is no woman available a woman designated for that will be one to search.

Question 19

Section 29

Answer 19

Search be conducted in a decent and orderly manner- a woman may be searched by a woman, if there is no woman available a woman designated for that will be one to search.

Question 20

Unproperly obtained evidence? Admissibility of illegally obtained evidence.

Answer 20

Section 35 (5) Constitution:
Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise, be detrimental to the administration of justice.