Quote of the week

[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.

David Medalie
28 September 2010

Can the police search your car without a warrant?

It is unclear exactly what happened when billionaire businessman and publisher of the newly launched newspaper, The New Age, Atul Kumar Gupta, was stopped at a roadblock in Johannesburg this weekend. What we do know is that Mr Gupta was travelling in his black X5 BMW from his offices in Midrand at about 9pm on Saturday when the police stopped him on the R55 highway. His driver and bodyguard was frisked. Police found a licenced firearm on him. According to The Sowetan:

Sources said when the police officers wanted to search Gupta and his car he refused. He then got on the phone and said he was calling General Bheki Cele, but not before telling them that he knew all the top police commissioners and would get them all fired. “All hell broke loose when Gupta refused to be searched. He also boasted that he was well-connected to Cele, threatening the arresting officers that they would pay for their actions,” one source said.

Mr Gupta was arrested and charged for refusing to have his car searched. Later he denied all the allegations against him and yesterday all charges against him relating to the obstruction of justice were dropped. This is, of course, a rather juicy story because Gupta is said to be close to President Jacob Zuma and his son, Duduzane, and is bankrolling a newspaper with strong ties to the ANC.

Nevertheless, the story also poses another interesting question about the powers of the police to stop and search individuals at roadblocks. As Michael Trapido points out, both the Criminal Procedure Act and the Police Act (amongst others) empower the Police – in certain circumstances – to search an individual’s car without first obtaining a search warrant.

The Criminal Procedure Act allows the police to search any person or any “container or premises” of that person without a search warrant. It also allows the police to seize any article reasonably believed to have been used to commit a crime or that is reasonable believed to be evidence that could assist the state in proving that a crime was committed. This can be done only if the owner gives consent for the search or if the police officer has reasonable grounds to believe that a search warrant would have been issued and a delay in conducting the search would have defeated the purpose of the search and seizure operation.

This means that a police officer can search you personally or can search your car or house – even when no search warrant was obtained and even when you did not give permission for such a search – but only when he or she has a reasonable suspicion that you have committed a crime or are hiding evidence that could prove that you (or others) are guilty of a crime. So, if a police officer stops your car and the sweet smell of dagga wafts from the car, that police officer can search your car to try and find any dagga you might be hiding – even without first obtaining a search warrant to do so.

According to the relevant case law, a police officer must in fact have a reasonable suspicion that you have committed a crime or that you are in possession of material used or to be used in the commissioning of a crime. A mere assertion by a police officer that he or she had such a suspicion without any evidence to back it up will not do. This means that where a police officer stops you in the street and decides that you are a drug dealer merely because your hair is died green or because you are wearing a T-shirt with a picture of the Nigerian flag on it, he or she will not be able merely to argue that there is a reasonable suspicion that you committed a crime or are in possession of material used in the commissioning of a crime and, hence, will not be entitled to search you.

This also means that if members of the police knock on your door and say they want to search your house, you should think twice before giving them permission to do so. It would perhaps be better always to first ask them for a search warrant. If they do not have a search warrant, you should ask them to inform you of the evidence on which they base their reasonable suspicion that you are hiding criminal activity. If they cannot give a good answer, they are not entitled to search your house without obtaining a search warrant first.

But that is not the end of the matter. The Police Act also allows members of the Police to set up roadblocks with the permission of the National or Provincial Police Commissioner. Section 13(8)(f) of that Act allows any police officer to search any car stopped at a roadblock and to seize any object that is reasonably believed to have been used in a crime or can be used as evidence in proving the commissioning of a crime. If one is stopped at a roadblock, one has a right to be shown a copy of the written authorisation given by the National or Provincial Police Commissioner for the setting up of the roadblock.

This section is much broader than the provisions of the Criminal Procedure Act as it allows a police officer to stop you, search your car and then seize any item – even when that officer initially had no reasonable grouds for believing that you were involved in the commissioning of a crime or was in possession of evidence relating to the commissioning of a crime. So, even if you are driving home, listening to classical music on Fine Music Radio, stone cold sober, minding your own business, this section will allow the police to stop you at a roadblock and search your car without a warrant – just in case you might be a classical music loving terrorist ferrying explosives or a notorious (classical music loving) drug dealer.

The constitutionality of these provisions have not yet been challenged and, until they are, the police would be well within their rights to stop you at a roadblock and to search your car (as they did with Mr Gupta). However, it is clear that these provisions infringe on the right to privacy guaranteed in section 14 of the Bill of Rights. The only question would be whether such an infringement would be justifiable in terms of the limitation clause.

The Constitutional Court has stated that the right to privacy is a layered right. This means there is a continuum of privacy rights which may be regarded as starting with a wholly inviolable inner self, moving to a relatively impervious sanctum of the home and personal life and ending in a public realm where privacy would only remotely be implicated. An infringement of privacy rights would be easier to justify where the infringement occurs in the public realm rather than in the inner sanctum of one’s home.

For example, when one is searched before entering a soccer game or when entering the Parliamentary precinct, this infringement would be considered relatively trivial and would easily be justified. On the other hand, a warrantless search of your house or car would be more difficult to justify.

In deciding whether the legal provision that empowers a police officer to infringe your right to privacy is justified, one will have to look at how serious the privacy breach allowed by the law is. The closer the breach to your “inner sanctum” the more difficult it would be to justify the infringement. That will have to be weighed up against the importance of the purpose of the law allowing the breach of your privacy. If the breach is to protect the public from terrorist attacks at a soccer game, I suspect a court will be very reluctant to find the infringement constitutionally problematic. Finally one will have to ask whether there are not less restrictive means that could have been used to achieve the same important purpose. The broader the power given to the police, the more difficult it would be to justify.

I suspect that in the light of the above, the provisions of the Criminal Procedure Act would probably withstand constitutional scrutiny because a police officer can only infringe your right to privacy if he or she has reasonable grounds to suspect that a crime was committed or that you are holding evidence of the commissioning of a crime. Preventing crime is rather important and the limitation of your right to privacy would be justified because the power given to the police is limited to cases where they have a reasonable suspicion that you are a bad apple.

However, I suspect the provisions of the Police Act that allow a police officer to search your car at a roadblock – even when he or she has no reasonable grounds for suspecting you have committed a crime or hold evidence of the commissioning of a crime – would not pass constitutional muster. Because the powers given to the police in the latter instance are so broad that they could easily be abused to intimidate and harass innocent and law abiding road users, the provisions are probably overbroad and hence unconstitutional.

But until the constitutionality of these provisions are challenged, they remain in forces, and one would not be allowed to refuse to have your car searched on the basis that the empowering provisions allowing the police to search your car are unconstitutional just because some upstart law professor said so on his Blog. If Mr Gupta was stopped at a roadblock, he would therefore have had no right to refuse to have his car searched. He would have been obliged to submit to the search, but he would, of course, have been entitled to challenge the constitutionality of the provisions of the Police Act at a later stage.

However, Mr Gupta’s threat that he will sue the police for wrongful arrest will probably come to naught. While one can claim damages for wrongful arrest, the provisions of the Police Act are so broad that it would be difficult to argue that the police acted unlawfully in this case. Even if he was not stopped at a roadblock, the police will probably claim that they had a reasonable suspicion that he was involved in crime and hence that they were entitled to search the car in terms of the Criminal Procedure Act.

Unless, of course, the police had no permission from the Police Commissioner to set up the road block, in which case Mr Gupta might well have a case.

PS: For a good discussion that captures the essence of all the relevant issues relating to searches and seizures, see the LLM thesis of Vinesh Basdeo

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