Summary Note on Criminal Procedure Code : Search & Seizure

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Ok guys, notes on Criminal Procedure Code :

............................ Here it goes ............................

SEARCH & SEIZURE

è General Concept

§ SEARCH = Geledah

§ SEIZURE = Rampasan

SEARCH

è 3 Types of Search

1. Body

2. Premises

3. Person in premises

è 1^st TYPE OF SEARCH: BODY SEARCH

§ S17: This section is to search within a person with the presence of a search warrant, done by police not below that inspector / magistrate / Justice of the peace.

§ S19(2): A search upon a woman shall be conducted by another woman officer & must be done with full decency (penjagaan maruah).

§ S20: This is the search for a person arrested. Here the search is valid so long it is done by police officer with warrant for the accused to get a bail but he cannot discharge the bail or by private individual with or without the warrant for the accused to get the bail but he cannot discharge the bail.

§ S20A: Procedure for search on person –

· The procedure must follow the one in 4^th schedule.

§ S22: A search is allowed to be conducted in order to obtain name / address of a person.

4^th Schedule (pg 318) of CPC

1) MUST have either 1 of the following Objective of the search:

To get the incriminating evidence for an offence done by the accused.

To seize the items related to the offence.

Discoveries of the evidence relating to the offence or to avoid from disposal of the evidence.

2) The person in which the search is done must be the person who under an arrest or under lawful custody.

3) The types of body search must be 1 of the following:

Pat down search

Strip search

Intimate search

Intrusive search

4) The officer doing the search is to have the general conduct as follows:

Professional & Regard to dignity

Intro himself & Courteous & Min. embarrassment

Done the necessary only & Be appropriate

Be respectful

Keep the confidential matters

Same sex search [S116A(3)]

PROCEDURE FOR PAT DOWN SEARCH

4^th Schedule (pg 320) of CPC

§ Pat down search: It is a search of outer clothing, done in a way of a quick running of hands over the outer cloth of the person arrested.

§ Objective: It is done based on reasonable suspicion that a weapon / object / evidence / any items is concealed by the person arrested. Here, the search must be done –

· At the time of arrest; or

· Before the arrested person is put into the custody in the detention centre / lock-up.

§ PROCEDURE:

1) Ask arrested person to declare any harmful / unlawful items that he has within himself.

2) Ask the person to remove any personal items from his pocket.

3) Ask the person to remove any jewellery, watch and etc.

4) Order the person to be in position to be searched (face back the officer & his palms on the head & legs spread wide & to be in reasonable distance for the search).

5) If there is any vehicle / wall, the person may be asked to lean onto the wall / vehicle.

6) The officer may done the following:

·Run / squeeze the hair or arrested person without pulling it or ask the arrested person to do it by himself.

·Proceed to pat down one side of the body, then go to the centre back of body, and ask the arrested person to face him as to conduct the same for front part.

·Procced with search from top to bottom / running through neck & collar / shoulder to arm / armpit / breast.

·Proceed with search within the waist bands / belt / buttocks / legs.

·Officer must not touch the genital part while conducting the search.

7) The search must as possible as it can to be conducted out of public view to avoid embarrassment.

8) The search must be in minimal of embarrassment & a copy on list of things seized must be served and signed by the arrested person.

9) If the pat down search is conducted in a lock-up centre / detention centre, it must be recorded in station diary or record book.

PROCEDURE FOR STRIP SEARCH

4^th Schedule (pg 322) of CPC

§ Strip search: It is a search involving the removal of some part / all part of the clothing of the arrested person.

§ The search must be done –

· After the arrest; or

· When there is a reasonable suspicion that the arrested person is concealing any object / evidence / weapon / contraband.

§ When: The strip search maybe conducted before the arrested person is detained in a lock-up / detention centre / when the arrested person re- enters those centres with the reasonable suspicion of he is concealing the objects / evidence / weapon.

§ Who: Such search must be done on the approval of an officer not below the rank of inspector, and if done in oral, must be reduced in writing and be put in station diary.

§ PROCEDURE:

1) To conduct such search in private room with presence of 2^nd officer, & no recording by any devices is allowed.

2) The officer must explain to the arrested person in a language that he understands & ask him to remove his clothes.

3) No requirement that all of the clothes must be removed at once.

4) There will be 2 parts of search, the upper part (arm & head) & lower part (bellybutton). For a man, he is to be allowed to have his shirt on before the officer asks him to remove his pant, and same to the woman arrestee.

5) All of the removed clothes must be search thoroughly in front of the arrested person.

6) Search on hair may be done using a comb / if cannot, the officer may use his finger and run through / squeeze it without pulling the hair.

7) To search in ears area, the officer may raise the hair / inspects the ear canal using torchlight.

8) For search in nose area, the officer may ask the arrested person to lean his head back a bit, and use torchlight if necessary.

9) For search in the mouth area, the arrested person may be asked to rolled his tongue / stick his tongue out / pull his upper or lower lip out / to remove his false plate (gigi palsu).

10) For the search of the upper part (arm & head), a man, he is to be allowed to have his pant on and same to the woman arrestee.

11) Search in upper part, the arrested person may be asked to stand and raise his palm on the head / the officer to have visual inspection – 360’ degree / inspect the armpits or bellybutton or to lift up any skins (lipatan kulit) / inspect all arms or fingers.

12) For the search of the lower part (bellybutton) a man, he is to be allowed to have his shirt on and same to the woman arrestee.

13) Search in lower part, the arrested person may be asked to remove all clothes covering the lower part / conduct a visual inspection of 360’ degree.

14) The officer must have minimal physical contact with the arrested person involving his private parts.

15) After search complete, the arrested person must be allowed to put on his clothes again.

16) The copy on list of things seized must be served and signed by the arrested person.

PROCEDURE FOR INTIMATE SEARCH

4^th Schedule (pg 325) of CPC

§ Intimate search: It is a search involving the physical examination on the arrested person body’s orifices [anus’s hole] (excluding the mouth / nose / ears).

§ The search must be done –

· After the arrest; or

· When there is a reasonable suspicion that the arrested person is concealing any object / evidence / weapon / contraband.

§ Who: Such search must be done on the approval of an officer not below the rank of Assistant superintendent or any other officer from other respective agency which has same level / rank as the as. Superintendent.

§ PROCEDURE:

1) To order the arrested person to remove his lower part clothes if necessary.

2) To order the arrested person to squat over a mirror placed on the floor and asked him to cough deeply not more than 10 times.

3) If nothing is found after the above 2 steps, the arrested person shall be allowed to put on his clothes again.

4) In the situation where the arrested person cannot do the squat as for health factor such as pregnant / etc, (s)he must not be asked to squat.

5) The officer is disallowed to conduct any further intervention over the arrested person’s orifices to get the items out from that area.

6) The same procedure for strip search is to be applied for the intimate search, except for procedure relating to search on mouth / nose / ear areas.

PROCEDURE FOR INTRUSIVE SEARCH

4^th Schedule (pg 326) of CPC

§ Intrusive search: It is a search involving the examination over the arrested person to determine the existence of any object /weapon / evidence / contraband inside the body / orifices & this include the process of removing such items from the body part of the arrested person.

§ Who: It is to be conducted by the Govt Medical Officer / hospital assistant / registered nurse. Such search must be done on the approval of an officer not below the rank of Officer in charge for Police District, and if done in oral, must be reduced in writing and be put in station diary. Such medical officer after being serve with a copy of such approval, must conducted the related search without any delay.

§ PROCEDURE:

1) The arrested person is to be brought to the nearest hospital, and be accompanied with an officer.

2) The officer who accompanies him must be in the same gender & presence throughout the search & shall keep within his custody any items recovered via the search.

3) The copy on list of things seized must be served and signed by the arrested person.

è 2^ND TYPE OF SEARCH: PERSON IN PREMISE SEARCH

§ S17: This section is to search within a person with the presence of a search warrant, done by police not below that inspector / magistrate / Justice of the peace.

§ S58: In the case where a person is wrongfully confined, a Magistrate may grants a warrant to search that person. Following the result of the search, the Magistrate may later make the order accordingly.

è 3^rd TYPE OF SEARCH: PREMISE / PLACE SEARCH

§ S51: Power to get the property with existence of summons.

§ WITH WARRANT S54(2): If there is a possibility that as per S51 the property would not be produced or the property is not known to the Court or the court for the purpose of justice needs such general search to be conducted, such search may be conducted with warrant.

4) S65: The occupant (orang yg mendiami) such premises / person on behalf shall be on there during the conduct of the search & the copy on list of things seized must be served and signed by the arrested person.

§ WITHOUT WARRANT:

· S62: If there is any reasonable suspicion that a stolen property is being concealed in a place & there is delay to get warrant for searching such property in the related place, the search may be conducted without warrant. The list of good stolen & good ground to believe that such property was deposited in that place must be reduced in writing & the person whose property was stolen / his rep must accompany the officer in the search.

· S62A: Counterfeit coins.

· S62B: Counterfeit currency.

· S63 (Summary search): With an approval from the Chief Police Officer that a property has been stolen and kept in a place, a search may be conducted in the place. The CPO is not compelled to specify any particular property related as long as he has reasonable suspicion that the place is being used for the reception of stolen goods. This approval may be based with either of these circumstances:

That the place has been a place of residing for such convicted person more than 12 months; or

That the place has been a place of residing for such convicted person involving fraud / dishonesty which punishable with imprisonment.

· S116: As per S51, if there is possibility that such property will not be produced, and such property is important for the investigation conducted by the police officer, such officer may conduct the search in such place in order to complete his investigation.

· S116A: In the situation when there is possibility that there will be a concealment of evidence relating to the commission of security offence / organized crime, and the warrant is yet to be granted, the Police officer not below the rank of Inspector may conduct the search without warrant in order to avoid the objective from being frustrated. In conducting such search, the officer may break any obstruction / may seize or make copies of the evidence / may remove or search the person in or on the place.

· S116B: Throughout the search, the police officer may have access over any of the computerized data.

· S59: The person in charge of the place must ingress (open the door) when the officer introducing the warrant & must assist the officer in searching over the place.

· S16(2): When there is no ingress obtained, the officer may break any door / window to effected the search.

SEIZURE

è CONCEPT

§ S20: police officer may seize / kept any items which may relate to the crime until such arrested person is discharge / acquitted from such offence.

§ S21: The officer who making an arrest may seize any offensive weapon from the arrested person.

§ S62A: Counterfeit coins.

§ S62B: Counterfeit currency.

§ S64: A list of items seized via the search / found on a particular place must be served and signed by the officer in charge of the search.

§ S435: Any member of Police has power to seize any property that is believed to have been stolen, or under circumstances which create suspicion that an offence has been committed, & in situation where such seize is done by officer at nearest police station, the seizure shall be as soon as possible be reported to the respective officer.

PROCEDURE FOR SEIZURE

S413 of CPC

1) As per S20, where the officer seize the property which is believed to have connection with the crime, such stolen property must be presented immediately upon the Magistrate, who will order such property to be delivered back to the owner, or in the case where the owner cannot be ascertain, such property will be kept in custody.

2) The owner of such property must take the property from the delivery within 48 hours of the notice served by the Magistrate.

3) If the owner of such property cannot be ascertain, Chief Police Officer may conduct a public notification for the property kept within his custody, and the relate dperson must come forward to claim for such property within 6 months from the date of the public notification is made.

4) Magistrate may order for such property to be disposed / destroyed in the case where such property is very much small in value or costing the police by keeping it within their custody. This may be done after the expiration of the claim period.

S414 of CPC

§ Duration to claim the property: If within 3 months no person establishes the claim over the property / the owner cannot prove that he did possess the property, the Chief Police Officer may order such property to be sold.

§ Expiration of 6 months after the public notification: Here, the property may be ordered by the Magistrate to be sold & the profit is own by the Govt of the state.

S415 of CPC

§ Items that is perishable (decay) / small value: If the value is less than RM10, and its custody will cost the police unreasonable expense, such property may be sold at any time.

S416 of CPC

§ If the owner absent: In this situation, if the items is speedy & naturally easy to decay, such property may proceed to be sold.

FOC: The police with the search warrant has look for the goods which had been stolen from the Ian Peters Ltd. They did not find any specified goods but instead seized goods of other makes of the kind which had been stolen previously & which the police thought to be stolen. It turned out later that such goods were not the stolen goods. The Pf sued police for trespass.

Held: The police was not liable for trespass. Lord Denning in his judgment stated that when a police enters a premise with the search warrant, he is not only entitle to seize the property listed in the warrant but also empowered to seize any property that he is reasonably believes to have been stolen & to be material evidence on the charge of stealing. (Similar to S435 of CPC) Lord Denning also added that so long as he acted reasonably and did not retain them longer than necessary, he is protected. The lawfulness of the police conduct must be judges at the time when the incident occurred & not by what happen afterwards.

FOC: A Pakistan girl has went missing and was believed to have been killed. Police, out of reasonable suspicion has seized the dad in law, mom in law, and sister in law’s passport and several letters. Later, the pf (all the above) claim vs the police to get back their travel documents & damages.

Held: Lord Denning in deciding that the police is liable to seize the items unlawfully has stated that, the seize is lawful for a reasonable suspicion if:

·There is reasonable ground to believe that the item in qs is the material subject for the crime / an instrument used to commit the crime / a material evidence to prove the commission of the crime.

The lawfulness of the police in conducting such search must be judged at the time when incident occurs not afterwards. In this case, the police have failed to prove that such passports & letters are material evidence for the murder of the Pakistan woman. When there is unlawful seize, the police is not just committing a trespass over a person, but also such seized property cannot at all be admitted / accepted by the court.

FOC: In this case, there is warrant issued to seize a few items. In seizing those items, the police have also seized a few items which were not listed within the warrant. Magistrate later has ordered such items not listed within the warrant to be returned back to the owner.

Issue: Whether the act of ordering the items to be returned was a lawful act of the Magistrate & whether such discretion is unlawful exercise?

Held: The Magistrate has no power to order for such return of the unlisted items as the power is rest to the police.

EFFECT OF ILLEGAL SEARCH

FOC: App has been stopped by police in his movement. That police later has conducted a body search over him.

Issue: Whether the evidence which show that the app was in possession of ammunition has been legally obtained thus making it not admissible.

Held: Lord Goddard in his judgment has stated that, the test to determine whether the evidence via unlawful search is admissible or not is to ask a Qs of whether such evidence is relevant or not to the issue before the court? So long as it relevant to the current case, the way such evidence is obtained is irrelevant.

NOTE:

© This is contradicting with the principle laid down in the case of Ghani as prescribed above. Because in the case of Ghani, such evidence that is obtained through unlawful way cannot be admissible in court.

© However, you may argues to use the principles laid down in the case of Ghani in any problematic Qs as long as you argued that this position is more sound & logical & it fits the rationale of conducting a lawful search & seizure.

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