Police do not have absolute right to search without warrant – Attorneys-at-law

Sep 02, 2013 News

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Several legal authorities believe that while Guyana’s legislation states that search warrants should be provided under certain circumstances, the culture and practice in Guyana demonstrate otherwise.
Observers believe that the police and other law enforcement agencies have been abusing their authority by coming up with flimsy reasons to effect searches on the properties of citizens.
In many cases, the police shelter under the “reasonable suspicion” clause to access people’s homes, vehicles and other properties to carry out searches which often come up empty.  One experienced lawyer explained that a search warrant can be described as a written order issued to police officials by a Magistrate or a Justice of Peace, which authorizes the examination of premises.
According to senior police officers, “First and foremost, what citizens must understand is that it is their constitutional right to challenge any officer who wishes to carry out a search.”
“If you are approached by an officer, it is procedure for him to explain why he wants to carry out a search. And it is your constitutional right to challenge that officer for grounds of reasonable suspicion.”
The officer said that it is mandatory for any person effecting a search to explain what is their “reasonable suspicion”.
He explained that while there are some situations that do not require a search warrant, there are instances where one is required.
According to the law, a search warrant should be provided in the case where an officer is looking for a wanted person, fugitive, evidence to support a case before the court, stolen articles, among other prohibited or illegal items.
In addition, laboratories and pharmacies cannot be searched without a warrant. “Further, a warrant clearly says what the search is for. If it is for a fugitive, then they can’t look for stolen items. Another warrant would be required for such and this is what is expected of the officer, according to procedure.”
However, if an officer is in hot pursuit, a warrant is certainly not needed.
The officers further explained that, Warrants are also not needed for the search for ammunition, firearms and drugs “because the officer has the right as well to stop, search and detain at any time, once there’s reasonable suspicion, and this is the law.”
“And though it is wide, it allows the officer to do this because if a search is carried out by illegal entry, and any narcotic is found, it would still be used as evidence in court.”
But according to a prominent attorney at law, “while Chapter 16:01 Section 19 of the Police Act may state that an officer has the right to, ‘stop, search and detain…,’ a search warrant is needed to search a premises for drugs according to the Narcotics Drugs and Psychotropic Substances (Act).”
“What is interesting is that the Police Act was in existence long before the enactment of the Narcotics Act. Further, when new offences became rampant, such as money laundering and unlawful possession of narcotics, legislations such as the Narcotics Act were put in place and there is supposed to be rigid compliance with this but over the years, there has been none.”
According to the legal luminaries, Chapter 35:11, Section 84 of the Narcotics Act says, “In any prosecution or other proceedings under this Act, no evidence shall be deemed to be inadmissible only on the ground that it was obtained by illegal search or trick.”
The Attorneys added that while the law says this, there is no compliance with this law and, “this needs to be addressed.”
One of the attorneys who spoke to this newspaper explained that in the United States there is the “Fruit of the poisonous tree” principle which is a legal metaphor that refers to evidence that has been obtained from an illegal search. “The principle suggests that if the tree is poisonous, then anything from it is also considered as being tainted. Therefore, if the evidence has been obtained from an illegal entry then the evidence is not admissible and the case is therefore thrown out. Unfortunately, in the case of Guyana, if the tree is tainted, the fruit is still considered good,” explained the seasoned lawyer.
But according to the police, sometimes it takes too long to get a warrant. He suggested that in some cases the police have to circumvent the law in order to achieve results. “I agree that the law may say one thing but we as officers have a job to do. If systems or measures could be put in place where it does not take so long to obtain a warrant then I have no problem complying with that aspect of the law.”
Another legal representative related, “a critical issue of note is when the police appear at your home to conduct a search for stolen items or even drugs, ammunition and firearm and you have objected to their search, irrespective of the their grounds for reasonable suspicion and force is used where your property is damaged and they turn up empty handed, in such a case, the Police Commissioner can be sued and the necessary charges would be brought against them.”

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