SEARCHES, ARREST AND CONSTITUTIONAL RIGHTS

What is a search in criminal litigation?

Search is the examination of a person's body, property or premises by a law enforcement officer to discover evidence of a crime or concealed items.

What powers do the Police have regarding searches?

The Police may:

• Stop and search persons

• Stop and search vehicles in public places

• Detain and search persons suspected of possessing stolen or illegally obtained items.  

Authorities: Sections 4 & 48 Police Act, Section 49 Police Act 2020, Section 52 Police Act 2020.

Which constitutional right does a search potentially infringe?

Section 37 CFRN 1999 – Right to Private and Family Life.

What is the condition precedent for a valid search by the Police?

The search must be based on reasonable suspicion.  

Section 29 Police Act.

What are the three types of searches?

Search of:

• Person

• Premises

• Things.

Which laws empower the Police to search a person?

Section 52 Police Act

Section 5(1) ACJL Lagos, Section 9(1) ACJA, Section 159(3) ACJL Kano, Section 150(1) CEMA, Section 32 NDLEA Act.

What are the rules governing the search of a person?

Must be conducted decently.  Must ordinarily be by a person of the same sex.  Must respect the dignity of the person searched.  Authorities: Section 9(3) ACJA, Section 5(2) ACJL Lagos, Section 32(3) ACJL Kano, Section 34 CFRN.

Can a male search a female suspect?

Generally, No. The search must be conducted by a person of the same sex.  Authority: Section 9(3) ACJA, Section 5(2) ACJL Lagos.  

Exception to a male searching a female?

Exception under ACJA: Where urgency or the interest of justice makes same-sex search impracticable.

Does the same-sex rule apply to a woman's handbag or appurtenances?

No. A handbag or other appurtenances may be searched by the opposite sex.

Can a search of a person be conducted without a search warrant?

Yes. Search of:

• Persons

• Things

Authority: Section 9(1) ACJA, Section 5(1) ACJL Lagos.

Can a premises be searched without a search warrant?

Generally, No. A search warrant must first be obtained.  Authorities: Section 143 ACJA, Section 297 ACJL, Section 37 CFRN.

Who can issue a search warrant under ACJA?

Judge, Magistrate, Justice of the Peace.  Authority: Section 146(1) ACJA.

Who can issue a search warrant under ACJL Lagos?

High Court Judge, Magistrate.  Authority: Sections 104 and 106 ACJL Lagos.

Can a Police Officer issue a search warrant?

No. Regardless of rank, a Police Officer cannot issue a search warrant. Only the courts can.  Authorities: Sections 58, 71 and 141 Police Act 2020.

State the contents of a search warrant.

AIDS:  A – Address of the premises  I – Items to be searched for  D – Direction that items be seized and brought to court  S – Signature of issuing authority.  Case: Elias v. Pasmore.

How is a search warrant procured?

Upon:

• Information on oath; and

• In writing.  Authorities: Sections 143-144 ACJA, Section 104 ACJL Lagos.

State four situations where a search warrant is unnecessary.

Under:

• An arrest warrant.

• Search conducted in the presence of a Magistrate or Justice of Peace.

• Under special statutes: CEMA, NDLEA Act, NSCDC Act.

• Pursuant to an order of court.

What happens where a Police Officer executing an arrest warrant is denied entry into premises?

The officer may use reasonable force to break in and out.  Authorities: Sections 12(2) and 13 ACJA.

Is the presence of a Magistrate or Justice of Peace equivalent to a search warrant?

Yes. Where the Magistrate or JP personally directs and supervises the search, a search warrant is unnecessary.  Authority: Section 152 ACJA.

What special rule applies to a woman living in purdah?

She must be given reasonable notice to withdraw before the search is conducted.  Authorities: Section 149(6) ACJA, Section 7(3) ACJL Lagos, Section 159(6) ACJL Kano.

State the exceptions to the purdah rule.

The rule does not apply where:

• The woman is herself the subject of the search.

• The searching officer is a woman.

• The woman is absent from the premises.

What constitutional rights must be respected during invasive body searches?

Right to Privacy – Section 37 CFRN.  Right to Dignity of Human Person – Section 34(2) CFRN.  Note: A corner of a room is not a private place.

What is the procedure after items are recovered during a search?

The items are taken to the Police Station.  They are entered in the Exhibit Register.  They are handed to the Exhibit Keeper.  They are kept in the Exhibit Room.

What is an inventory of recovered items?

It is a list of all items recovered from the suspect during a search.  Authorities: Section 10(1) ACJA, Section 5 ACJL Lagos.

Must the suspect sign the inventory?

Yes, under ACJA. However, failure to sign does not invalidate the inventory.  Authority: Section 10(2) ACJA.

Who is entitled to receive a copy of the inventory?

The arrested person;  His legal practitioner; or  Any person directed by him.  Authorities: Section 10(3) ACJA, Section 6(b) ACJL Lagos, Section 36(6)(c) CFRN.

What does Section 54 of the Police Act 2020 prohibit?

Profiling. A person cannot be searched merely because of:

• Age

• Dressing

• Appearance

• Hairstyle

• Lifestyle

• Previous conviction.  Authority: Section 54 Police Act 2020.