Delayed section 32 search

11 October 2021

Not reviewed after the date of publication

Question:

A suspect was arrested by firearms officers for an indictable offence and taken to custody. Officers remained at the property awaiting the attendance of uniform officers to carry out the search.

Uniformed officers did not arrive until 2 hours later, was this a lawful search?  

Answer:

The power to enter and search a premises upon arrest is outlined in section 32(2)(b), however officers using this power must be able to satisfy the full provisions of this section:

Section 32(2)(b) provides the power to enter and search any premises, in which a person was when arrested or immediately before they were arrested, for evidence relating to the offence. The power to search premises under this section is only if the offence for which they have been arrested is an indictable offence.

Section 32(3) states that this power may only be used to search 'to the extent that is reasonably required for the purpose of discovering any such thing or any such evidence'.

Section 32(6) states that a constable may not search premises in the exercise of the power conferred by subsection (2)(b) above unless he has reasonable grounds for believing that there is evidence for which a search is permitted under that paragraph on the premises.

In the circumstances described, ideally the arresting officers should have carried out the search as soon as possible after arrest. There is no time limit specified in the legislation regarding how soon after the arrest the property is required to be searched. However, as the power to search premises is grouped together in subsection (2) with the power to search the person, and as the premises it applies to are those that the person was in at the time of arrest or immediately before, it is our view that the intention of the legislation was for the search to be carried out at the time of arrest, or immediately after. In our opinion, the more time that passes following the arrest, the less likely it is that section 32 will cover the search. Whether the time delay caused a search to be unlawful, would ultimately be for the courts to decide, based on the full circumstances.

To avoid any risk of the search being deemed unlawful and evidence being deemed inadmissible, we would advise that other search powers are considered, such as section 18 search or a section 8 warrant, depending on the circumstances.

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