When can the police search your home or car?

When can the police search your home or car?
14 Jul 2021

If you are stopped at a roadblock, can the police search your car? Are the police entitled to enter your home and search it without a warrant?

In this article, we explain when – and under what circumstances – the police can search your home or car.

What the law allows

In most circumstances, the police should have a warrant issued before searching your car or home. However, under certain circumstances the Criminal Procedure Act, the Police Act and the Drugs and Drug Trafficking Act empower the police to search your car or home without first obtaining a warrant.

The police can search your home or car without your permission and without first getting a warrant if an officer has a “reasonable suspicion” that you:

  • have committed a crime; or
  • are in possession of material used, or to be used, in a crime.

A police officer can’t simply search your home or car on a whim. He or she must have evidence to back up the reasonable suspicion.

Exceptions when police can proceed with searches

A warrant is needed in most circumstances for the police to legally carry out a search of your car or home, but there are exceptions.

You give permission

If a police officer asks for your permission to search your car or home and you grant permission, it is a legal search.

Roadblocks

The Police Act allows the police to set up roadblocks with the permission of the National or Provincial Police Commissioner. The Act allows a police officer to search any car stopped at a roadblock.

An officer can seize any item that’s reasonably believed to have been used in a crime or can be used as evidence in proving the commissioning of a crime.

Clearly, this is open to abuse. A police officer at a roadblock can search your car when he or she has no reason to believe you have committed, or are planning to commit, a crime.

Urgency

Police are legally allowed to search your home or car without your permission and without a warrant when the need to execute the search is so urgent that any delay caused by obtaining a warrant “would defeat the object of the search”. This means the police can search your home or car to search and seize evidence they believe would be imminently moved or destroyed.

There are restrictions on this power. The police officers involved must have reasonable grounds to believe a warrant would have been issued. If evidence is obtained when there was no real urgency or insufficient grounds for the search to take place, the evidence can’t be used in a trial against the accused.

2016 Constitutional Court ruling

Any unwarranted search of your home or car can be an invasion of privacy and an abuse of police power. In theory, The Constitution protects an individual’s right to privacy.

In 2016, a Constitutional Court ruling invalidated sections of the Drugs and Drug Trafficking Act that authorised warrantless searches. This came after a high-profile case involving the seizure of drugs worth R13 million from two properties leased by Grace Kunjana.

Kunjana was charged with possession of and dealing in drugs. While the criminal case was still pending, her legal team filed a Western Cape High Court application challenging the constitutionality of the sections of the Drugs Act that allowed warrantless searches.

The High Court declared sections of the Drugs Act invalid and this was upheld by the Constitutional Court. It found that sections infringe on the right to privacy to a degree that cannot be justified and is unconstitutional. In the case of the Drugs Act going forward, this set a precedent for searches generally requiring warrants.

How to respond to a police search

It’s hard to know how to respond to a police search, especially after reading reports of nasty interactions with police officers. For detailed information of what to do, read this article.

Remember to always remain calm, polite and cooperative. Firstly, ask for identification so that you know you’re dealing with a real police officer and ask to see a search warrant. Take notes of names, time and the location of the search.

If you’re stopped at a roadblock, remember that your car can be searched. You can’t refuse it. You can and must ask the police officer to show you ID and the written authorisation from the National or Provincial Police Commissioner for the setting up of the roadblock.

Legal assistance in cases of police assault

If you or a family member experiences physical injury as a result of police assault – for example, during an unwarranted and unconstitutional search of your home or car – you may have a personal injury claim.

For the best legal support and representation, contact DSC Attorneys. The firm specialises in personal injury claims, including police assault claims, and works on a no win, no fee basis.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
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