Online Reporter
Trust Maanda
Legal Position
THE police can search with or without a warrant.
Whether or not a search warrant is required depends on the circumstances. It terms of Section 51(1) of the Criminal Procedure and Evidence Act [Chapter 9;07] (the CPEA), a search without a warrant is lawful in certain circumstances. It provides as follows:
(1) “A police officer may, without warrant, search any person or container or premises for the purposes of seizing any article referred to in section forty-nine and additionally, or alternatively, seize any such article-
(a) if the person concerned consents to the search for and additionally, or alternatively, the seizure of the article in question or if a person who may consent to the search of the container or premises consents to such search and additionally, or alternatively, the seizure of the article in question; or
(b) if he on reasonable grounds believes that –
(i) a warrant should be issued to him in terms of paragraph (a) of subsection (1) of section fifty
if applied for one; and
(ii) the delay in obtaining a warrant would prevent the seizure or defeat the object of the search,
as the case may be.”
This means that a police officer may, without warrant, search any person or container or premises for the purposes of seizing any article which is concerned in or is on reasonable grounds believed to be concerned in, the commission or suspected commission of an offence, whether within Zimbabwe or elsewhere. Any article that is suspected to be concerned with commission of an offence, can be searched for and seized without a warrant.
Any article which it is on reasonable grounds believed may afford evidence of the commission or suspected commission of an offence, whether within Zimbabwe or elsewhere; may be searched for and seized without a warrant. Any article which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence. and additionally, or alternatively, seize any such article-
If the person concerned consents to the search without a warrant, that person may be searched for or if a person consents to the search of the container or premises consents to such search and additionally, or alternatively, the seizure of the article in question; or
A police office may search without a warrant if he on reasonable grounds believes that a warrant should be issued to him if applied for one; and that the delay in obtaining a warrant would prevent the seizure or defeat the object of the search, as the case may be.
The Criminal Procedure and Evidence Act demands the fulfilment of two requisites for a search without warrant to be lawful.
First, it requires that a police officer must, on reasonable grounds, believe that a warrant would be issued to him if he or she had applied for one. It must be such that any reasonable person could see that if the police officers had applied for a search warrant, it could have been given.
In addition, the law requires the police officer to demonstrate that the delay in obtaining a warrant would have prevented the seizure or defeated the object of the search.
An example of another law in terms of which a search can be done without warrant is the Dangerous Drugs Act.
Section 14D of the Dangerous Drugs Act gives powers of search, seizure and forfeiture.
If any inspector, customs officer, or police officer above the rank of sergeant (or below the rank of sergeant with the written authorisation of a police officer above the rank of sergeant) has reasonable grounds for believing that any person is in unlawful possession of any dangerous drug, he may, without a search warrant enter upon any land where such person is believed to be, and there require him to produce for his inspection such dangerous drug.
He or she may search such person or any animal in his possession, and enter and search any land, building, vehicle, in the possession or use of such person.
The search has to be done by a person of like sex; and with the strictest regard to decency and decorum; and seize any dangerous drug in the possession of such person and, unless he is satisfied that such person will appear and answer any charge which may be preferred against him, arrest and detain him.
If the police do not search using the provisions of the Dangerous drugs Act, they may still be within their rights to act in terms of the provisions of the Criminal Procedure and Evidence Act, by searching without a warrant, if obtaining a warrant will defeat its purpose with regard to the exigencies of the case.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.
