Retrieving potential evidence discarded by suspect

21 July 2021

Not reviewed after the date of publication

Question: 

A suspect is being pursued by officers and discards several items of potential evidence on an open area of land. He is arrested some distance away but it is not possible for the arresting officers to conduct a search of the land then and there due to prisoner security. The land is not searched until sometime later.

What legal power do the officers (who are not the arresting officers) have to search the open area?

Answer:

With regards to the search of an open area of land (public not private), where it is thought that a suspect has discarded evidence, the police would not need a specific power to search.

Depending on the exact circumstances, it may be necessary for the area to be cordoned off as a crime scene and the public prevented from using that area whilst a detailed examination takes place, even though there is no statutory power which actually allows the preservation of a crime scene (except for terrorism - see section 33 Terrorism Act 2000). It is the duty of the police to closely examine the crime scene and that would include any privately owned items found there.

If discarded evidence is now in a private property/garden the police do not have the power to enter and search without permission.  In a case lacking the consent or presumed consent of the owner of the premises, the search should be delayed until a section 8 warrant has been obtained.  This will ensure that any evidence located and seized will be admissible in court. If there are concerns that someone will return and remove evidence, the property can be monitored until the warrant is granted.

It would be advisable to conduct a search in such circumstances as soon as possible. The arresting officer may not have had a clear view of what was discarded, and the more time that passes, the more difficult it may be to prove that any specific items found were actually discarded there by the suspect.

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