Police Search and Seizure – Without a Warrant

By 23rd Dec 2021Criminal Law
police search and seizure

The law, in general, does not permit the South African Police Services (SAPS), to search your vehicle or property without a search warrant, but the Criminal Procedure Act, the Police Act, and the Drug Trafficking Act make provision for search and seizures of your vehicle or home without obtaining a warrant in certain circumstances. The circumstances under which a police officer may search your vehicle or home without a search warrant is if an officer has a “reasonable suspicion” that:

  • You have committed a crime, or
  • You are in possession of material used or to be used in a crime.

The police officer cannot base their reasonable suspicion on a hunch and must substantiate their reasonable suspicion with evidence. There are further exceptions that allow a police officer to search your vehicle or home without a warrant and that is where the police officer asks you whether they may search your property and you give permission for the search. By giving voluntary permission to the police for the search of your property renders the search lawful. Police can search your vehicle without a warrant or your permission when stopped at a roadblock. These roadblocks must be authorized by the Provincial or National Police Commissioner in terms of the Police Act. The police officer may seize any item that is believed to be used in the commissioning of a crime or can be used to commit a crime.

A further exception would be a matter of urgency, Police are legally allowed to search your home or vehicle without your permission and a warrant when the need to execute the search is so urgent that any delay caused by obtaining a warrant “would defeat the object of the search”. This means the police can search your home or vehicle to search and seize evidence they believe would be moved or destroyed.

There are restrictions on this power. The police officers involved must have reasonable grounds to believe a warrant would have been issued. If evidence is obtained when there was no real urgency or insufficient grounds for the search to take place, the evidence would be inadmissible in a trial against the accused.

Should you find yourself in a situation where your vehicle or home is searched, and items seized without a warrant or your permission, do not hesitate to contact us for legal assistance.

 

Charne Sebonka
charne@bbplaw.attorney
Associate

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