In other words, warrants must provide enough detail so that an officer can ascertain with reasonable effort the persons and places identified in the warrant. For most residences a street address usually satisfies the particularity requirement, unless the warrant designates an apartment complex, hotel, or other multiple-unit building, in which case the warrant must describe the specific sub-unit to be searched.
Know Your Rights: Can You be Searched Without a Warrant?
Warrants must describe individuals with sufficient particularity so that a person of average intelligence can distinguish them from others in the general population. The magistrate before whom an officer applies for a warrant must be neutral and detached. This qualification means that the magistrate must be impartial and not a member of the "competitive enterprise" of law enforcement see California v. Thus, police officers, prosecutors, and attorney generals are disqualified from becoming a magistrate.
States vary as to the requirements that candidates must possess before they will be considered qualified for the job of magistrate. Some states require that magistrates have an attorney's license, while others require only that their magistrates be literate. Where a warrant is used, it must be lawfully obtained and executed. Any defect in this process could result in the removal of harmful evidence in your case. A skilled lawyer knows what to look for when it comes to warrants and can help you mount a strong defense.
Get in touch with a criminal defense attorney in your area who can help you understand any issues related to the warrant requirement.
Find your Lawyer Explore Resources For Learn About the Law. These are considerable safeguards protecting the right to privacy of individuals. For the effective protection of the right to privacy, the information on which reasonable grounds are based, thus authorising a constitutional search, may not itself have been obtained in violation of section While the identity of informers need not be disclosed, information should be placed before an independent decision maker in terms of which the reliability of such hearsay evidence can be assessed.
The word of the police cannot be a substitute for the decision of the issuing authority. A police official may without a search warrant search any person or container or premises for the purpose of seizing any article referred to in section According to section 13 6 of the Police Service Act 43 a police official may search without a warrant any person, premises, other place, vehicle, vessel or aircraft or any receptacle, and seize any article that is found and may lawfully be seized.
The aim of such a search is to exercise control over the illegal movement of people or goods across the borders of South Africa. The search may be conducted:. Section 13 7 of the Police Service Act provides for searches in an area cordoned off for purposes of public order or safety.
The National or a Provincial Commissioner may, "where it is reasonable in the circumstances to restore public order or to ensure the safety of the public in a particular area", authorise in writing that a particular area be cordoned off, specifying the period which may not exceed 24 hours , the area and the object of the cordoning off. On the strength of this authorisation, a police official may, "where it is reasonably necessary" to achieve the objective of the authorisation, conduct a search without a warrant and presumably without reasonable grounds of any person, premises, vehicle or receptacle or "any object of whatever nature" and seize any article that may afford evidence of the commission of an offence.
Given the broad purpose of the search, there may be insufficient safeguards to achieve the necessary balance between the rights of citizens and law enforcement concerns. Where it is reasonable in the circumstances in order to exercise a power or perform a function referred to in the Constitution, 47 section 13 8 a of the Police Service Act provides that the National or Provincial Commissioner may authorise a police official in writing to set up:.
Law Office Search Warrants
Section 13 8 c empowers a police official who is so authorised, to set up such a roadblock or checkpoint, as the case may be. In terms of section 13 8 g i a police official who sets up such a roadblock or checkpoint may:. The police official must, on demand of any person whose rights are or have been affected by the search and seizure, exhibit a copy of the written authorisation to hold the roadblock or checkpoint. In Sithonga v Minister of Safety and Security  the court maintained that it is common cause that section 13 8 restricted the setting up of checkpoints to public places.
However, the Act did not define what a public place was. It was further held that an authorisation in terms of the Act must describe the place where the checkpoint was to be set up with sufficient particularity. Section 13 8 d of the Police Service Act , provides that a police official may set up a roadblock for the purposes of seizing certain articles without written authorisation from the National or a Provincial Commissioner, if such a police official reasonably believes that:.
In these circumstances a roadblock may be set up by such a police official on any public road or roads in that area in order to determine if a vehicle is in fact carrying such an object. The requirement that a Commissioner may exercise this power only where it is "reasonable in the circumstances" imposes an objective test. A specified objective for the roadblock should be formulated, the objective of which can be assessed. A general crime prevention roadblock grants police officers unstructured search powers which are open to abuse and arbitrary action, while a limited objective, such as the search for weapons, would focus and confine police actions.
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, particularly describing the place to be searched, the person or things to be seized.
Law Office Search Warrants | The Law Society of British Columbia
The Fourth Amendment, unlike section 14, deals not only with the seizure of possessions but with persons as well. The United States Supreme Court defined 'search' to mean "a governmental invasion of a person's privacy". The "act of physically taking and removing tangible personal property" is generally a seizure. Terry v Ohio 56 indicated that seizure of a person occurs when an official uses physical force or makes a show of authority that in some way restrains a person's liberty so that he is not free to leave. The Supreme Court of Canada views the right to privacy as being "at the heart of liberty in a modern state".
Section 8 of the Canadian Charter of Rights and Freedoms is simple. It stipulates that: "Everyone has the right to be secure against unreasonable search or seizure". Much of the framework for analysing section 8 can be derived from Hunter v Southam 58 and R v Collins. A search is said to be any intrusion other than arrest upon an individual's person, property or privacy for the purpose of seizing individuals or things or obtaining information by inspection or surveillance.
Seizure was defined in R v Dyment 63 as "the taking of a thing from a person by a public authority without that person's consent". A seizure also includes compelling a person to give up an item. This type of seizure usually occurs in the regulatory field where documents are ordered to be produced, 64 or where authorities are empowered to make copies of documents.
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The birth of a supreme Constitution 66 with an entrenched Bill of Rights can be viewed as the most important event in South African legal history. In the Constitution the basic principles of criminal procedure have been constitutionalised in the entrenched Bill of Rights. Crime investigation entails obtaining evidence through the searches and seizures of persons, places and things respectively.
South African law acknowledges that state authorities should not be permitted untrammelled access to search and seizure. It is a necessary incident of constitutionalism that citizens must be protected from unjustified invasion of their privacy and property by agents of the state.
If the latter is not realised, arbitrary state actions could severely hamper and prejudice the individual's personal freedom and associated rights, that are intended to be a predominant feature of constitutionalism. Historically the police have required legal authority for conducting searches and seizures.
The Criminal Procedure Act has long provided the only legal basis for obtaining warrants to search and seize or for performing such actions without a warrant in some circumstances. Section 21 of the Criminal Procedure Act makes provisions for search in terms of a search warrant. Contrary to section 21 of the Criminal Procedure Act , section 14 of the Constitution protects the right not to have one's person or property searched.
The Criminal Procedure Act therefore prima facie infringes this right. However in the context of criminal justice a search for and seizure of articles can be considered legitimate for the following purposes: to be used as evidential material in a prosecution, 68 to be confiscated because their possession is unlawful, 69 to return them to their rightful owner, 70 and to be forfeited to the state if they were used in the commission of a crime. These safeguards are inherent in South African law and are also profound in the jurisprudence of the United States and Canada.
In the United States the Fourth Amendment, like our Constitution though the extent of the similarity is debatable also protects a person's right to be free from unreasonable searches and seizures. The US Constitution also describes the circumstances under which a warrant must be issued. It provides that a warrant shall not be issued unless there is probable cause; the warrant must be supported by oath or affirmation and the place to be searched and the things to be searched must be particularly described.
In the United States of America it is the function of a judicial officer to issue a search warrant. This principle is not fully adhered to in South African law. In South Africa as a general rule a search should also be authorised by a judicial officer. If the person who is issuing the search warrant is part of the office of the executing officer it may be asked if that person can be regarded as neutral or detached.
An important difference between the Canadian Charter of Rights and Freedoms and the South African Constitution when compared with the Fourth Amendment is that the Fourth Amendment specifically requires a police official, before conducting a search, to obtain a search warrant based upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized. There is no requirement that proof beyond reasonable doubt which is a South African legal standard be furnished, but he or she should show more than a mere suspicion.
Section 22 of the Criminal Procedure Act provides for search and seizure without a warrant. Section 22 can be divided into two parts: 1 firstly a search conducted with the consent of the person concerned and 2 secondly a search conducted in the reasonable belief that a warrant will be issued to a police official and that a delay in obtaining a warrant would defeat the object of the search. The Criminal Procedure Act makes provisions for a number of instances, depending on the objective thereof, in which a search of premises may be conducted without a warrant.
Each of these instances describes the specific circumstances in which a search may be undertaken based solely on the subjective opinion of the police official conducting the search. These instances include the following. Further, police are not required to obtain a search warrant to perform a limited search of an individual for weapons if they have a reasonable suspicion to justify that intrusion.
Once an individual has been lawfully arrested, the arresting officers do not require reasonable suspicion, probable cause or a search warrant to perform a complete search of the individual. The United States Supreme Court has held that, in order to comply with the Fifth Amendment, an individual who is in custody and being interrogated must be provided their Miranda warnings.
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Being in custody does not necessarily mean that an individual is in handcuffs or at a police station. Whether a person is in custody for purposes of Miranda is determined by whether a person has been deprived of their freedom in a significant way. If law enforcement officers have not complied with their obligations under Miranda , a defendant may bring a motion to suppress the statements.
Even if a defendant has been advised of their Miranda rights, any statement made by a defendant may not be introduced into evidence at trial unless the statement was made voluntarily. A coerced confession may not be used against a defendant.
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