Search & Seizure Flashcards
What did the case of Halliday v Neville find?
“A man’s home is his castle”.. This case relates to entering premises.
“The principle apples to officers of the government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorised or excused by law”.
Does the protection of the individual rights against the invasion of a person’s home extend to his/her person?
Yes. Any touching of a person without consent or authorisation by law for the purpose of searching or seizing property would amount to an assault.
What power does Section 21 of LEPRA provide for Police?
Section 21 of LEPRA is the power for Police to search a person and seize things without a warrant
21 Power to search persons and seize and detain things without warrant
(1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:
(a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,
(b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,
(c) the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,
(d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.
What power does Section 23 of LEPRA provide for Police?
Section 23 of LEPRA is the power for Police to search a person for dangerous implements without warrant in public places and schools.
23 Power to search persons for dangerous implements without warrant in public places and schools
(1) A police officer may, without a warrant, stop, search and detain a person who is in a public place or a school, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that the person has a dangerous implement unlawfully in the person’s possession or under the person’s control.
What power does Section 36 of LEPRA provide for Police?
Section 36 of LEPRA is the power for Police to search a vehicle and seize things without a warrant.
36 Power to search vehicles and seize things without warrant
(1) A police officer may, without a warrant, stop, search and detain a vehicle if the police officer suspects on reasonable grounds that any of the following circumstances exists:
(a) the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, anything stolen or otherwise unlawfully obtained,
(b) the vehicle is being, or was, or may have been, used in or in connection with the commission of a relevant offence,
(c) the vehicle contains anything used or intended to be used in or in connection with the commission of a relevant offence,
(d) the vehicle is in a public place or school and contains a dangerous article that is being, or was, or may have been, used in or in connection with the commission of a relevant offence,
(e) the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, a prohibited plant or prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985,
(f) circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk.
What power does Section 42 of LEPRA provide for Police?
Power to search vessels and seize things
What power does Section 87 of LEPRA provide for Police?
87 Search and seizure powers
A police officer who enters a dwelling under a power conferred by or under this Act and who believes, on reasonable grounds, that:
(a) a dangerous article or dangerous implement (other than a laser pointer) is in the dwelling, and
(b) that the dangerous article or dangerous implement is being, or was, or may have been or may be used to commit a domestic violence offence,
may search the dwelling for the dangerous article or dangerous implement and seize and detain the dangerous article or dangerous implement.
What power does Section 27 of LEPRA provide for Police?
S27 Power to carry out search on arrest
27 Power to carry out search on arrest
(1) A police officer who arrests a person for an offence or under a warrant, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything:
(a) that would present a danger to a person, or
(b) that could be used to assist a person to escape from lawful custody, or
(c) that is a thing with respect to which an offence has been committed, or
(d) that is a thing that will provide evidence of the commission of an offence, or
(e) that was used, or is intended to be used, in or in connection with the commission of an offence.
Section 28A is an after arrest power of LEPRA is a search power that allows Police to?
28A Power to carry out search of person in lawful custody after arrest
(1) A police officer may search a person who is in lawful custody after arrest and seize and detain anything found on that search.
(2) Any such search may be carried out at a police station or other place of detention or immediately before or during transportation of the person to or from a police station or other place of detention.
What did George v Rocket find in relation to “suspicion”?
George v Rocket (1990) found:
“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension of mistrust, amounting to a slight opinion but without sufficient evidence”.
Who is the authority for “Suspicion based on hearsay” and what was found in this case about it?
Tucs v Manley found:
Not only does suspicion carry less conviction than belief, but to say that a suspicion is reasonable DOES NOT necessarily imply that it is well founded, or that the grounds on which it was based must be factually correct.
ALSO: “Is it permissible to take into account hearsay evidence in considering whether there is a reasonable suspicion? In my opinion, the answer is yes”.
The case of Streat v Bauer: Streat v Blanco also explored suspicion based on hearsay. What did Streat v Bauer: Streat v Blanco find in relation to suspicion based on hearsay?
A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probation value”.
What did George v Rocket find in relation to is “belief”?
In George v Rockett (1990), the meaning of belief was stated at 116 as:
“A belief is an inclination in the mind as towards assenting to, rather than rejecting, a proposition and the grounds of which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture”.
What did Streat v Bauer: Streat v Blanco find in relation to “reasonable”?
The question is whether a reasonable man would be of that opinion having regard to the information which was in the mind of the arresting officer”.
When must the belief/suspicion be held?
- . Only the things known to the officer AT THE TIME he/she exercises her power,
- . Information/things discovered AFTER the exercise of the power will generally be ignored by the court (even if the information relied on to exercise the power turns out to be wrong)
- Something found during the course of the search cannot be used to justify the search.
