CRIMINAL LITIGATION: LEGAL EXECUTION OF SEARCH WARRANTS AND ADMISSIBILITY OF ILLEGALLY OR WRONGFULLY OBTAINED MATERIAL EVIDENCE DURING SEARCHES.

By:  Dr. Fred Latimore Oghenesivbe.

Search in legal parlance especially in criminal law constitutes the examination of a person’s body, apartment, premises, office areas, vehicle, aircraft and other such places by a police officer or other categories of law enforcement agents for the purpose of finding evidence of crime with which to prosecute a suspect or an accused person in a court of competent jurisdiction.  Searches therefore are an integral part of pre-trial investigations  under section 6 (1) of the Criminal Procedure Act (CPA), Section 28 Police Act, Section 44 (3), 78, 79 and 127 of the Criminal Procedure Code (CPC) and section 150 (1) of the Customs and Exercise Management Act (CEMA among other enabling laws and enactments.

Criminal litigation is procedural and highly technical which is why failure to adhere to certain rules may set a criminal free or punish an innocent person. Evidence is the core aspect of criminal prosecution and it is the prosecution (the Commissioner of Police on behalf of the State or Attorney General either State or Federal) that has to prove its case beyond reasonable doubt that the accused person actually committed the offence. Therefore, to prove the actual commission of a crime by the accused person, the police during pre-trail investigation must ensure that a proper investigation was carried out and necessary exhibits relating to the offence are obtained through various means. He or she has to conduct searches on the body of suspects, home, office, car, aircraft, ship, personal effects and such other places or properties to obtain documentary or material evidence, whenever necessary during investigation, with which to prove its case beyond reasonable doubt.

A police office is empowered under Section 28 of the Police Act, Section 1 of the Criminal Procedure Act and Section 44 of the Criminal Procedure Code to search the body of suspects whenever arrest is made especially if the subject matter of the offence can be immediately found on him. For example if a suspect is alleged to have snatched a sum of money from a victim and was immediately apprehended under Section 4 of the Police Act, it is expedient that the Investigating Police Officer (IPO) should search the body of the suspect with a view to recovering the said sum or conduct a search on his personal effects if carrying a bag or such other property of the suspect. Section 29 of the Police Act permits a police officer to detain and search a suspect but limited to offences of fraud or dishonesty. The power of police officer is further expanded in Section 4 of the Police Act which expressly, among other lawful duties, to prevent and detect crime, to apprehend offenders and to preserve law and order, protect life and property, et al.

It must be stated that where a search is to be conducted on a woman, it must be done by a woman law officer or law enforcement officer as stipulated under section 6 (2) Criminal Procedure Act, Section 44 (3) Criminal Procedure Code, Section 32 National Drug Law Enforcement Agency (NDLEA) and Section 150 (1) of the Customs and Exercise Management Act. That a law enforcement officer is authorized to search a suspect does not translate to inflicting bodily harm on the suspect during search or subjecting the suspect to inhuman treatment which is why Section 82 of the Criminal Procedure Code expressly provides that searches shall be with strict regard to decency and respect for the dignity of the human person.

A search warrant is procurable by a police officer or law enforcement agent upon information on Oath and the warrants when issued enables the executing police officer(s) to enter into a premise or aircraft to search items specified therein and shall seize and material suspected to be in connection with the alleged offence under investigation. The general rule is that for a search to be conducted on premises, the police officer or any other officer conducting the search must arm himself or herself with a search warrant and when search is conducted on premises without a warrant it becomes an unlawful search. Exception to this rule is where a person to be arrested is suspected be within particular premises such apartment or premises may be searched for purposes of having him arrested.

The authority to issue a search warrant is vested in a Judge or Magistrate under section 107 of the Criminal Procedure Act and Section 74, 75 and 76 of the Criminal Procedure Code. A Justice of the Peace is also a competent person to issue a search warrant as well as a superior police officer above the rank of Cadet Assistant Superintendent of Police, preferably a Chief Superintendent of Police (CSP). Such power of the superior police officer to issue search warrant is limited only to matters relating to recovery of stolen property or other such proprietary offences. Warrants when issued remain in force until it is either executed or cancelled by the court that issued it as provided under Section 109 (2) of the Criminal Procedure Act.

A search warrant may be issued and executed on any day including a Sunday and public holiday as provided under Section 111 (1) of the Criminal Procedure Act and shall be executed between the hours of 5.00am and 8pm unless there is an endorsement permitting its execution at any other time. The executing officer has right of ingress and egress within the validity period of the warrant to break into and out of the premises for the sole purpose of reasonably executing the warrant.  See also Section 7, 8 and 112 (2) of the Criminal Procedure Act and Sections 34 (3) and 84 of the Criminal Procedure Code. It is trite that where a warrant expressly states specified time of execution and the executing officer violates such lawful order; such act of the police officer becomes unlawful and can be set aside by a court of competent jurisdiction and police officer liable in a civil action.

The valid execution of a search warrant is anchored on Section 78 of the Criminal Procedure Code which expressly states that a search warrant should be executed in the presence of two (2) respectable inhabitants in the neighbourhood to be summoned by the person to whom the warrant is addressed. If the premise to be searched is occupied by a woman in Purdah and unless she is the one to be arrested, she shall be informed that she is at liberty to withdraw before the executing officer enters the premises and shall give her every reasonable time or facility to perfect her withdrawal. This procedure is only applicable in Northern Nigerian where the Islamic injunctions are adhered to in certain pre-trial investigations. It will therefore be unlawful for a police officer to enter the apartment of a Muslim woman in purdah to execute a warrant without first adhering to this provision.

A customs Officer may without a search warrant enter or break into a place where there are reasonable grounds to suspect that something worthwhile and liable to forfeiture is kept or concealed under Section 147 (1) of the Customs and Exercise Management Act while Section 32 of the NDLEA Act empowers a Police Officer, a custom officer, any member of the armed forces, the director or any officer of the NDLEA to enter without search warrant, search any land, building, et al, which he has reasons to believe is connected with the commission of an offence under the Act.

Before a search is conducted by a police officer, it is necessary that such police officer should first be searched to ensure that he or she is not in possession of certain incriminating materials or weapons which can be planted in the premises to implicate the suspect where there the warrant executing officer has personal scores to settle or have been settled to implicate the suspect. It is also to prevent the suspect alleging that the exhibit found in his premises was planted by the warrant executing police officer. This process is however not a legal requirement hence the failure to search the officer’s body before he or she conducts the search does not make the search illegal or unlawful or wrongful. It is recommended that a person whose body or premises is to be searched should first be given the right to search the body of the warrant executing officer (the police) before commencing the search. In State versus Musa Sadau (1968) NMLR 208, the accused persons alleged that the item recovered in the course of the search was buried there by the officer who conducted the search so as to implicate him.

Section 37 of the 1999 Constitution (As Amended) provides for the right to privacy which is why whenever a constitutional or statutory right of a citizen is to be derogated from, maximum care must be taken to ensure that derogation is for good cause and every provision relating to such derogation must be complied with. Therefore, whenever a person causes the premises of another to be searched wrongfully, he or she would render himself or herself liable in civil action. This rule states that if a person without reasonable cause, procure or cause the procurement of a search warrant pursuant to which another person’s property, car, ship, office, personal effect or any other device was searched by a police officer, or even leading to his arrest, detention and/or prosecution, the person who laid such malicious complaint on the basis of which the police officer acted will be liable in damages.  In the same vein, in the case of a complaint leading to the arrest and detention of the suspect, the complainant will be liable for false imprisonment.

In Mgarba versus Maigoro(1992), Balogun Versus Amubikahu (1989), Ojo versus Lasisi (2003) and UAC Plc versus Sobodu(2006), the courts maintained that the complainant who set in motion investigation, arrest and prosecution of the accused person will be liable for civil liability arising from unlawful arrest, detention and prosecution. Therefore,  it is important that the complainant must be sure of the complaint brought to the police or law enforcement agent otherwise may end up paying huge compensation to the accused person if the prosecution fails to prove its case beyond reasonable doubt leading to  discharge and acquittal of the accused person.

Materials illegally or wrongly obtained in the cause of executing a search warrant are admissible in evidence during trial irrespective of how such evidence is obtained. The implication of this evidence rule is that even if material evidence was obtained by force or fraudulently or even by violating the rights of the accused person shall be admitted in evidence provided it is relevant to the prosecution. In Kuruma versus R, R versus Lecthan (1861), Musa Sadau & Another versus The State, the courts held that illegally obtained piece of evidence is admissible so long it has direct relevance to the case. Section 15 of the Evidence Act 2011 provides for circumstances which the court should consider before admitting piece of evidence obtained illegally or wrongfully. These include; the probative value of the evidence; the importance of the evidence in the proceedings; the nature of the relevant offence, cause of action of the defense and the nature of the subject-matter of the proceeding, the gravity of the impropriety or contravention; whether the impropriety or contravention was deliberate or reckless; whether any other proceeding has been or is likely to be taken in relation to the impropriety or contravention; and the difficulty, if any, of obtaining the evidence without propriety or contravention of law.

The above section has brought remarkable innovations into the admissibility of illegally and wrongly obtained material evidence in criminal litigation in Nigeria. It has put final paid to the era of impunity in pre-trail investigation process by stating conditions for which illegally obtained material evidence can be admissible.  In the English case of Elias versus Passmore (1934), it was held that a police officer who obtains evidence illegally may be liable in a civil action. The decision in State versus Sadau is no longer good law in Nigeria. The constitution also provided some rights of the accused person in police custody which has also curtailed the reckless obtaining of evidence in pre-trail process. These rights include; right to remain silent or avoid answering of questions from a police officer until he has consulted a legal practitioner of his own choice under section 35 (3) of the 1999 constitution (As Amended); The right to be informed in writing in the language he understands explaining the grounds of arrest or the nature of offence under Section 35 (2), right to be tried within a reason time under Section 35 (4) (5), right to fair hearing under Section 36 (1), et al.

The accused person also have the right to pubic apology upon a wrongful procurement of warrant of arrest leading to actual arrest and false imprisonment in violation of Section 35 of the 1999 constitution (As Amended). The Court decisions in Agbakoba versus SSS, Giwa versus the State, et al. Search warrants not properly obtained are generally illegal and police officers should ensure that only the authorities empowered to issue warrants are approached. It is trite that where a law enforcement agent in the course of carrying out his duties decides to execute a warrant in a manner inconsistent with laid down procedure or otherwise obtain evidence illegally, he or she will render himself or herself liable in a civil action as was decided in the English case of Elias versus Passmore.

In the next article, I will be discussing Pre-Trial and Police Interview with special focus on Judge’s Rule, Alibi, and Confessional statement of an accused, Trial within trial, Identification parade, Police bail and exhibits in Police custody.

Dr. Fred Latimore Oghenesivbe, is a member of the Human Rights and Political Communication Committee of the American Political Science Association (APSA) chaired at the New York University, USA. He is also a full member of the Nigerian Institute of International Affairs (NIIA) and International Political Science Association (IPSA).