CRIMINAL PROCEDURE CLASS NOTES- 2009.

SEARCHES WITH OR WITHOUT A WARRANT

Law applicable.

The Criminal Procedure Code Act cap 116

The Police Act cap 303
The Magistrate’s court Act cap 16

Definition of a search.

A search may be defined as an inspection made on a person or in a building for

the purpose of ascertaining whether anything useful in criminal investigation
may be discovered on the body of the person or in the building searched.

A search is carried out for the purpose of collecting evidence and exhibits which
may be used in a criminal trial. A search may be carried out in anyplace whether
it be within premises or outside, or in a vehicle.

Normally searches are carried out on the authority of search warrants issued by
the court, but police officers are empowered to search without a warrant in
certain cases.

SEARCH OF ARRESTED PERSONS.

A police officer has power to search any person who has been arrested and to
take possession of anything found on such a person which might reasonably be
used as evidence in any criminal proceedings. S.6 (2) of the CPC.

Whenever a person is arrested without a warrant, by a private person under a

warrant, and the person arrested cannot be released on bail, the police officer
making the arrest or the re arrest has power to search such a person and place in
safe custody all articles other than necessary clothing, which are found on him.

A police officer or any person making the arrest has power to seize any offensive
weapons found with an accused person. S. 9 CPC

1
Whenever it is necessary to search a woman, the search must be carried out by
another woman with strict regard to decency. S.8 CPC and s. 23 (2) of the police
Act.

Search of Premises of Arrested Persons.

When a police officer has reason to believe that material evidence can be
obtained in connection with an offence for which an arrest has been made. Or of
the person for whom the warrant of arrest has been issued, and he has power to
seize anything which might reasonably be used as evidence in any criminal
proceedings. (s.69 MCA). If the person to be arrested enters any building or
place, the arresting officer or person has power to enter the premises and search
them. (S.3(1) CPC)

Power to stop and search persons and vehicles.

Any police officer has power to stop, search or detain any vessel, boat, aircraft or
vehicle where he has reason to suspect that anything stolen or unlawfully
obtained may be found. A police officer has similar powers in respect of any
person who may be reasonably suspected of having in his possession or
conveying in any manner any thing stolen or unlawfully obtained. The police
officer is authorized to seize such thing. S.7 CPC.

SEARCH WITH A SEARCH WARRANT.

A search warrant is written authority given by a court ordering the search of the
premises, place, or vessel named in the warrant for the purpose of seizing
anything therein which is required or material in the investigation of an offence.
In other words, a search warrant is an authority to search a place for evidence of
a crime which is suspected or believed to have happened. The two main reasons
why it may be necessary to search a place are, to make an arrest and second, to
obtain evidence.

A search warrant must be signed by the magistrate issuing it, and must bear the
seal of the court. S.56(1) and s. 74 MCA. Every such warrant remains in force
until it is executed or until it is cancelled by the court which issued it. S. 55(3)
MCA.

The direction in the search warrant must be strictly observed. The person to
whom it is directed is not supposed to seize articles which are not mentioned in

2
the warrant unless such un named articles are likely to provide additional
evidence as to the identity of such articles, or which at least, have some relevance
in the charge against the accused person.

Thus the seizure of irrelevant articles is not only legally unjustified but may
damage the prosecution’s case. In order to prove that the articles seized were
from the accused, it is necessary to prove the contents of the warrant.

In Mohanlal Trivedi v R

The appellant was convicted of being in possession of property reasonably

suspected of having been stolen and failing to give a satisfactory account of his
possession. The police searched the house and shop of the appellant for a
camera. Although they didn’t find the camera, they found an exposure meter
which was the subject matter of the charge. On appeal it was contend among
others that the conviction ought not to stand as no search warrant was produced
and there was no evidence to show that the appellant’s house and shop were the
buildings named in the warrant. The prosecution failed to prove the contents of
the warrant because of their failure to produce it in evidence.

Power to issue a search warrant.

If it is proved on oath to a magistrate that anything which is necessary to the

conduct of investigation into any offence is in a building, vessel, carriage, box,
the court has power to issue a search warrant authorizing the person to whom it
is directed to search such place for such a thing. The place to be searched for is
found, the person carrying out the search is empowered to seize and carry it to
the court which issued the search warrant or some other court to be use as an
exhibit. S. 70 MCA

Execution of search warrants.

A search warrant may be directed to one or more police officers or chiefs named
therein or generally to all police officers and chiefs. However where the
immediate execution of search warrant is necessary and no police officer or chief
is available, the issuing court may order any other person to carry out the search.
Where a search warrant is directed to more than one officer or person, it may be
executed by all or any one of them. S. 58 MCA

3
A Search warrant directed to a police officer may also be executed by any other
police officer whose name is endorsed upon the warrant by the officer to whom it
is directed or endorsed. The position is the same as regards chiefs. S. 60 MCA.

Every search warrant may be issued and executed on a Sunday. It must be

executed between the time of sunrise and sunset, although the court has power
to authorize the police officer or other person to whom it is addressed to execute
it at any hour. S. 71 MCA.

Search of Closed Places.

Whenever any building or other place liable to be searched is closed, any person
residing in or being in charge of such building must, on demand of the officer or
person executing the search warrant, and on production of the warrant, allow
him free entrance and exit from the building. The person in charge of the
building is also required to afford the person searching all reasonable facilities
for the search. S.72 (1) MCA

If entrance or exit is not allowed, the person executing the warrant is authorized
to break in or break out of the building. S. 71(2) MCA and s. 4 CPC.

If any person is found in or near the building to be searched , and is reasonably

suspected of concealing on his body any article for which search should be made,
such person may also be searched. If the person is a woman, she must be
searched by a woman. S. 72(3) MCA and s. 23(2) of the CPC.

Detention of Property seized.

When anything is seized and is brought before a court, it may be detained until
the conclusion of the case or the investigation. Reasonable care must be taken for
its preservation. S. 73(1) MCA.

If any appeal is made, or if any person is committed for trial, the court must
order it to be further detained for the purpose of appeal or the trial. S. 3(2) MCA.
If no appeal is made, or if no person is committed for trial, the court must direct
such thing to be restored to the person from whom it was taken, unless the court
sees fit, or… authorized, to dispose of it otherwise. S. 72(3) MCA.

SEARCHES WITHOUT A SEARCH WARRANT.

Under s. 7 of the CPC, a police officer is authorized without a search warrant to

stop, search or detain a vehicle, vessel, or aircraft, if he has reason to suspect that

4
it contains stolen property or property un lawfully obtained. In any way he can
stop and search any person and seize any property found on him

s. 7 (1) of CPC provides;

Any police officer may stop, search or detain any vessel, boat, air craft o r vehicle
in or upon which there is reason to suspect that anything stolen or unlawfully
obtained may be found and also any person who may be reasonably suspected of
having in his possession or conveying in any manner anything stolen or
unlawfully obtained, and may seize such thing.

The application of this section is called into question when a police officer after
stopping and searching, proceeds to charge the person searched with an offence
under s.300 of the penal code act. On a charge under this section, the prosecution
must satisfy the court that there was reasonable suspicion before the vehicle or
person was stopped and searched.

In other words, suspicion must precede the stopping. Suspicion which may be
reasonable, arising or manifesting itself after the stopping will not render the
action of the police officer legal under section 7 of the CPC.

Read Kityo Vs. Uganda 1967 EA 23.

It should be noted that the power of stopping and searching under s.7 of the CPC
is vested only in police officers. For example, chiefs would not be acting lawfully
if they assumed to exercise powers under this section

Read Tenywa V Uganda 1969 EA 102.

Prepared by Lecturer

Unders.6 apolice officer can search an arrested person,and obtain from him any
thing that can be used for trial.under s.9. apolice officer also can search,under
s.8. women to be searched by fellow womenand section 74 of the cpc, under
s.69. a police officer is empowered to search abuilding,under s.3. where a
ccused enters ahouse the arresting person is empowered to enter and serch for
him,under s.7. a bout vehicles,vessels airplanes .

5
Under s.56.1 and asearch warrant must contain seal and signature of the
magistrate MCA. Under s.55 mca search warrant stay valide until executed
s.58.it shold be excuted by the person on it if it s a grop or any one of them
under section 60. if it is addressed to one of thepolice offcer t cn has well be
crred on by thhe one whose name s endosed on it.