The Gazette 1982

g a z e t t e

april

1982

the possession of an arrestee which is material evidence on the charge for which he is arrested, or a charge in the contemplation of the arresting officer, or appears, on reasonable cause, to be stolen property or property in the unlawful possession of the arrestee, may be retained by the police for use at the trial of the person arrested, or at the trial of any other person or persons on any criminal charge in which the property is to be used as evidence. In that manner is the rule stated in Jennings v. Quinn. 103 The rule seems quite reasonable, but two questions of controversy arise: what is possession, and, whether the property of an innocent third party can be seized or retained by the police for use against an accused? In Jennings v. Quinn 103 this former question was not considered by the Supreme Court. There, the police on a backed extradition arrest warrant thoroughly searched the applicant's house and seized anything of conceivable relevance and subsequently obtained other property from a garage owner in Cappoquin. In terms of the strict theory of the common law such action was illegal but in Dillon v. O'Brien & Davis 104 Palles C.B. was prepared to admit that rent books and documents in the same room as the accused were in his "possession" and under his control; and so also in Agnello v. U.S., 105 cocaine seized from the pockets and from the room where the arrest of the applicant took place was lawful, and thus admissible in evidence under the rule in Weeks v. U.S. 106 However, the federal agents then went to the bedroom of his house four blocks away and found a can of cocaine. On appeal, the Supreme Court held the second seizure contrary to common law, the goods being out of Agnello's possession at the time of arrest, and quashed his conviction. What the concept of "possession" on arrest embraced was further elucidated in 1969 by the U.S. Supreme Court in Ted Chimel v. California. 107 This was a case where the applicant, arrested under a coinage offence in his own house, had that house searched from top to bottom by the police. There Mr Justice Stewart stated the common law rule extended only:- "To search the person arrested in order to remove any weapons that the latter might use to resist arrest or effect his escape. Otherwise the officers' safety might well be endangered and the arrest itself frustrated. In addition it is entirely reasonable for the arresting officers to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon, or evidentiary items, must, of course, be governed by a like rule There is ample justifica- tion therefore for a search of the arrestee's person and the area 'within his immediate control' construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." As regards the second question, in Dillon v. O'Brien & Davis, 104 Palles C.B. considered that the police were not entitled to seize evidence in the possession of a third party, because a legal mechanism, by way of subpoena 'duces tecum', already existed to compel its production. However, in Elias v. Pasmore, 108 illegal serches bearing the fruit of valuable evidence were justified on the grounds of State necessity. This latter decision was used in

In those circumstances such a detention will be short of arrest as the policeman will have no intention at the moment of arrest of initiating the criminal process. In all cases in exercising his power under this section the policeman must inform the suspect of the reason for his (the policeman's) actions. As reasonable a suspicion must exist here as in an ordinary arrest 91 and this is viewed not just from the point of view of the arresting constable but in the light of the circumstances as a whole. 92 Thus it has been held unreasonable for two shabbily dressed constables to arrest a citizen bringing his coat to the dry cleaners who proposed to board a bus in disregard of their inquiries of him. 93 But where a person makes as if to flee 94 or starts to make concealing movements 95 the powers are properly exercised. 96 Further, the suspected person need not have stolen anything but could merely have it in transit innocently; but it must be in transit not just sitting on someone's property; 97 and once there exists a reason for the detention aspect of the power, the purpose of exercising it can contemplate questioning. Thus in Daniel v. Morrison 98 it was held lawful for a constable, who seeing a car without a tax disc and on questioning the owner and getting the cheeky answer that the car was stolen, to detain the suspect for further questions when he attempted to walk away. There seems no reason why such a power should not be used. As Glanville Williams points out, 99 the section is to the benefit of the citizen. Rather than arrest and then search a person one would assume that an innocent citizen would prefer, in circumstances where reasonable suspicion could fall on him, to be stopped, questioned and searched on the spot and then released if the suspicion is discovered to be unfounded. But there is the obvious danger of abuse, and such powers should only be given where public policy or order clearly requires the risk of innocent citizens suffering such indignity. More recently, those powers have been given in like form to the police in drugs cases, 100 although in drugs cases arrest would be better, as a search to be useful must be absolutely thorough; also in firearms cases; 101 and extensive powers to stop and search vehicles have been given under Section 8 of the Criminal Law Act 1976. Those powers can arise where a Garda, with reasonable cause, suspects that offences under the Section have been, will be, or are being, committed. He may stop any vehicle without cause, and, without cause, search it. If, before or after such search, he has reasonable cause to suspect the occupants are criminals, whether intended, or past, or in the act, or where they have evidence related to the commission or intended commission of the offence, he may search them also. The only limit on the power to stop and search a vehicle is that the purpose must be to discover criminals or evidence related to their crimes, actual or intended. The category of crime includes murder, robbery, and all firearms cases, none of which need be subversive in character. Whether those powers should exist in all those cases is essentially a political matter. They were passed at a time of great political concern for the safety of the State and they do make vast inroads into the liberty and privacy of the citizen. 102 Search and seizure upon arrest: The second police power to gather evidence arises as a consequence of a valid arrest. Any evidence found on or in

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