Various unlawful practices have continued to happen within our society, one of which is the practice and conduct of search by the police and other law enforcement agencies, whether or not they have search warrants. These have however raised various issues. For any premises to be searched, a search warrant issued by a court must be obtained by the police or any other security agency. Any search conducted without a warrant is unlawful and unconstitutional because the said act would amount to an infraction of the constitutional right to privacy, but there are exceptions.
The Administration of Criminal Justice Act (ACJA) 2015 explains how a search warrant should be executed by officers of law enforcement agencies.
Section 146 of the ACJA 2015 states that a search warrant shall be assented to by a Judge, Magistrate, or Justice of Peace and shall remain in force until it is executed or cancelled by the Court which issued it. Point of note in this section is to the effect that once it has been executed such warrant can no longer be used to conduct any other search. Order to conduct a search is granted upon an application made to the court by the Law enforcement agents sequel to a reasonable believe that the person is in possession of evidence which will aid the law enforcement in their case.
On the timing of the execution of a search warrant, section 148 of the ACJA 2015 states that a search warrant may be executed “anytime” of the day.
The section states “a search warrant may be issued and executed at any time on any day, including a Sunday or public holiday.”
A search warrant may be directed to one or more persons. A search warrant may be directed to more than one persons and as such, it can be executed against the names contained therein.
IS FORCE ALLOWED WHEN ENFORCING SEARCH WARRANTS?
Section 149 (1) of the ACJA provides that a person residing in a building shall allow a law enforcement agent to get free and unhindered access to carry out a search.
Section 149 (2) allows the reasonable use of force when access cannot be obtained by the officers executing the search warrant.
It reads: “Where any building or other thing or place liable to search is closed, a person residing in or being in charge of the building, thing or place shall, on demand of the police officer or other person executing the search warrant allow him free and unhindered access to it and afford all reasonable facilities for its search. Where access into the building, thing or place cannot be obtained, the police officer or other person executing the search warrant may proceed in the manner prescribed by section 9, 10, 12, and 13 of this Act.”
WHAT’S THE MANNER PRESCRIBED BY SECTIONS 9 AND 12?
Section 9(1) states: “Where a suspect is arrested by a police officer or a private person, the officer making the arrest or to whom the private person hands over the suspect: (a) May search the suspect, using such force as may be reasonably necessary for the purpose.”
Section 12(2) states: “Where access to a house or place cannot be obtained under subsection (1) of this section, the person or police officer may enter the house or place and search it for the suspect to be arrested, and in order to effect an entrance into the house or place, may break open any outer or inner door or window of any house or place, whether that of the suspect to be arrested or of any other person or otherwise effect entry into such house or place, if after notification of his authority and purpose, and demand of admittance duly made, he cannot obtain admittance.”
The general rule is that a search cannot be conducted or done without a warrant but there are exemptions to this.
A search warrant permits the police to search a house when there is a probable cause that the search will reveal evidence of criminal activity.
A warrant authorizing the search is required which is approved by a Judge or Magistrate as the case may be.
The search warrant must contain the description, address of the house, location of the house, name of the person and the items in view believe will be found as the basis of the search.
The police cannot search your home or belongings without a warrant but there are exceptions where the law permits searches of a house without a warrant to be made under several circumstances when certain exemptions apply such as consent/permission, plain view/sight of a crime, lawful arrest of search incident and exigent/emergencies.
However, Police may search a house without a warrant in some exceptional occasions when evidence is about or likely to be destroyed, concealed, degraded and or in danger of being destroyed.
Police can forcibly enter a house if it is probable that evidence is been destroyed, if a fleeing suspect escapes or hide in another person’s house or has taken shelter in a house or when a gunshot sound is heard or where someone is being injured.
The police’s responsibility to preserve evidence, arrest suspect or protect an individual outweighs the search warrant requirement in that circumstances.
Any evidence obtained through illegal, improper and unreasonable searches is not admissible in law as same will be suppressed and cannot be used against the accused.
It is trite that the law recognizes our right to privacy, and as a general rule, the police and every other security agency or law enforcement agents cannot search a house/property without a search warrant (written authority) issued by a court. Any search conducted without the warrant is unlawful. This is succinctly provided for in Sections 12(1), and 149(1) of the Administration of Criminal Justice Act .
It is however imperative that exception exists to this rule. On that note, a search without a warrant will suffice if a police officer acting upon a warrant of arrest suspects that the person to be arrested has entered into, or is within the said premises.
Similarly, another instance where a person’s house could be searched without a warrant is where such person(s) conceals evidence within the premises, which in the eyes of the law is peculiar or sensitive to a matter or suit or pending investigation. In the same vein, where special circumstances can be shown as a matter of necessity to conduct the search.
Be that as it may, it is a general rule that search cannot and can never be conducted without a warrant, but where the exceptional cases arises, actions might have to be taken out of necessity.
In law, there’s no definite answer or response to an inquisition. This is because our law in Nigeria is a law of exceptions. Every general rule has an exception and this is the sweetness of the law.
As a general rule, any search conducted on a premises without a warrant is unlawful and unconstitutional because the said act would amount to an infraction of the constitutional right to privacy as provided by section 37 of the 1999 Constitution. This section provides: “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”
What this means therefore is that where the premises of a person who is alleged to have committed an offence is to be searched, such an exercise can only be conducted sequel to obtaining a valid search warrant.
Just as I noted earlier about our laws being one with exceptions, I must hasten to point out that the said Constitutional Right is NOT absolute as section 45 (1) of the 1999 Constitution has watered down the effect of the said section. Section 45 provides: “Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society – (a). in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons.” This means that a house can be searched without warrant if the suspect harbours chemicals that can spread serious diseases, if the person has abducted another person (kidnapping), if the house is being used for immoral activities like prostitution, if there are suspected to be bombs in the house (public safety/defence).
As my conclusion, may I necessarily point out that the essence of searching a house includes to remove such threat, to liberate the captive, to protect the public from danger, to obtain evidence to be used against a suspect in court amongst others.
Now, obtaining evidences against a suspect in court is not an express part of the exceptions to section 37 of the constitution which means that where the police searches Mr B’s house without warrant just to obtain pieces of evidence it would amount to infringement of Mr B’s constitutional right to privacy. But what happens to such evidence so “wrongly” obtained? The Section 14 of the Evidence Act which governs admissibility of evidence in court provides thus “Evidence obtained-(a) improperly or in contravention of a law; or(b) in consequence of an impropriety or of a contravention of a law, shall be admissible unless the court is of the opinion that the desirability of admitting the evidence is out-weighed by the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained.” What this means is that where security operatives burst into the house of Mr B to search his house without search warrant, whatever is obtained therefrom is admissible against Mr B in court unless the court decides to exercise it’s discretion otherwise.
However, Mr B can bring an action against the security outfit under Fundamental Human Rights action for infringement of privacy.
The word search consists of looking for or seeking out that which is lost or otherwise concealed from view. The purpose of conducting any search is to find out evidence of crime which will enable the prosecution of the person alleged to have committed the crime. A legal document authorizing or directing an officer of the law to search a specified person, premises, dwelling, etc., as for stolen or contraband articles, items to be used in evidence, etc.
Authorities that can issue search warrant are:
- a Judge or Magistrate;
- a Justice of peace and
- a Superior Police Officer – section 28 (1) Police Act. A superior police officer is an officer above the rank of a cadet Assistant Superintendent of Police (ASP) this power to issue search warrant is limited to cases bothering on fraud or dishonesty.
A search warrant may be issued and executed on any day including a Sunday and a public holiday. It can be executed between the hours of 5.00 a.m. and 8. 00p.m, if the time will vary there must be an endorsement granting the extension of time.
As a general rule, no search on any premises must be conducted without a search warrant, if done without this, it amounts to an unlawful search, it does not have the backing or authorisation of law.
If anybody’s house will be searched without due permission is a violation of his fundamental right to privacy (section 37 of the 1999 constitution of the Federal republic of Nigeria as amended). However, this general rule that a premises cannot be searched without a warrant is not without exceptions. These exceptions are:
- A Justice of Peace can direct a search to be conducted in his presence in any place where he is competent to issue a search warrant – section 152 Administration of Criminal Justice Act.
- Custom officers may enter and break into any Premises reasonably suspected to harbour illegal goods.
- National Drug Law Enforcement Agency (NDLEA) officials can search any premises connected with a drug related offence.
- Where a person to be arrested under a warrant is suspected to be within a premises, the premises may be searched for purposes of having him arrested.
- Where a complaint has been made on oath to a court of the abduction for any unlawful purposes or of the unlawful detention of any person, the court may make an order for the production or for the immediate restoration of that person.
- The Nigerian Security and Civil Defence Corp do not need a search warrant to enter a premise where there is a reasonable belief that government property is being unlawfully harboured.
Although, it is imperative to say that a police officer conducting search without a warrant must make himself/ herself available to search before conducting the search, this is not a legal requirement.
Leave a Reply