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.
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. 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.
If you've been asked to consent to a search by the police, you can refuse to allow the search to take place and make a complaint about the police officer s involved. For example, you feel you were discriminated against. See Discrimination and taking legal action against the police. The search must be recorded in writing.
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You can get a copy of the record of the search from the police within 6 months of the search. You shouldn't be asked for your name, address or date of birth to complete the record if you decided not to provide it previously, but if you don't you will not be able to obtain a copy of the search record. The police should try to get your cooperation with the search but can use reasonable force if necessary. The officer should try to ensure that you understand the information you have been given.
If you find it difficult to communicate in English, the police may find an interpreter for you. If you are deaf, the police may ask someone accompanying you to translate in BSL, or find an interpreter. If nothing illegal has been found in the search, and there is no other reason for the police to detain you, you are free to go. The police do not normally have the power to require you to take off any clothing in public other than an outer coat, jacket, gloves, headgear or footwear. You may be asked to remove more clothing, but you can refuse.
Case Law 4 Cops-Police Traffic Stops/ Vehicle Searches Case Law
Removing more clothing would constitute a strip search , for which there are particular guidelines the police must follow. The searching officer can place their hands inside your pockets, and feel around the inside of collars, socks and shoes. Your hair can also be searched although the officer should take account of any issues around gender, religion or cultural differences and do this away from the public if needed.
In some circumstances officers may have been granted the power known as an s60 authorisation to order you to remove a head or face covering that you are using to conceal your identity, such as a balaclava or bandana. You cannot be ordered to remove a head or face covering, such as a hijab, except where the police officer has a reason to believe that it is being worn only to conceal identity, not simply because it happens to disguise identity.
Refusing to remove the face covering where an officer has ordered you to is an offence for which you can be arrested. A police officer granted these powers can remove or seize the face covering if they think it is being worn only to conceal your identity.
Stopped by Police
Where possible this should be done in private and in the presence of an officer of the same sex. If you are asked to remove a head or face covering that you were not wearing mainly to conceal your identity, you could make a complaint. For example, if you were wearing a hijab for religious reasons. The police do not have the power to take fingerprints, palm prints or body samples, such as a blood sample, unless you have been arrested and detained. See If you are arrested or held in custody by the police. If you resist being searched in any of the circumstances described above, the police officer can arrest you.
You can then be searched using force if necessary. However, intimate searches , for example, an internal search, requires a warrant. A strip search is a search where more than an outer coat, jacket, gloves, headgear or footwear is removed. You cannot be ordered to remove more clothing unless a strip search has been authorised by a more senior officer such as an Inspector. A strip search can only happen if the police think it is necessary to confiscate an illegal item that you are hiding under your clothes or on your body, such as a weapon.
A strip search can involve the exposure of intimate body parts. Your privacy and dignity should be respected. The following steps should be taken:. If you have been detained for a strip search you can request that you be searched in a nearby police station in private, or inside a police van but not a police car because you may still be able to be viewed from outside a car.
If something is found in your mouth, this can be removed. If something is found in another orifice, this cannot be removed unless the police have a warrant for an intimate search. You can remove this voluntarily, however. An intimate search is a search of body orifices other than your mouth.
This type of search can only happen if the police have a warrant from a sheriff. It can only happen with your consent. You should be treated with dignity and respect. The search will be carried out by a healthcare professional such as a doctor or nurse. A police officer of the same sex will also be present in the room. A responsible adult may be a parent, a guardian, an older sibling or another person with responsibility for the child or vulnerable adult.
Officers can search children and young people under 18 without parental consent. There is a guide to stop and search for young people on the Scottish Government website. Searches should be done in a way that minimises distress to the child, particularly if children have been 'looked after' children, have experienced abuse in the past or are particularly young. In some cases children are used as couriers for drugs or weapons. Where illegal items are found, the police may refer the child to the local authority or the Procurator Fiscal. Officers do not have to inform parents that the child has been searched, but may decide to do so even if this is against the wishes of the child.
They should explain to the child why this decision has been made. Children should receive a receipt of the search and can make complaints about the police on their own. Some people who have mental illness, personality disorders, autism or learning disabilities may find it difficult to communicate or understand a search and may be considered vulnerable adults.