CAN A POLICE OFFICER LAWFULLY DETAIN AND SEARCH ANY PRIVATE CITIZEN, VECHILE, ELECTRONIC DEVICE OR PREMISES WITHOUT A SEARCH WARRANT?
It has been a celebrated menace by members of the Nigerian Police Force (NPF) to violently detain and search private citizens, their belongings or vehicles without a search warrant. This act of ‘stop and search’ has left a lot of private citizens with the questions, ‘can a police officer lawfully detain and search me without a search warrant?’, ‘can a police officer lawfully search my house or property without a search warrant?’, ‘can a police officer search my phone, laptop or electronic device without a search warrant?’ etc.
This article shall provide answers to each of the above questions in accordance with the Nigerian Police Act 2020¹ and every other related statutory and judicial authority. This article shall further state instances where search warrant will be needed and expressly decipher between search of persons and search of premises.
Can a Police Officer Lawfully Detain and Search any Private Citizen Without A Searcg Warrant?
Interestingly, the answer is in the affirmative. Section 49 (2) of the Police Act² states inter alia that a police officer may detain and search any person or vehicle without a search warrant. However, this power is not absolute, the search will only be said to have been lawfully conducted if it complies with the provisions as provided in paragraphs a-e of the above subsection.
That is, where reasonable grounds for suspicion exist that the person being suspected is having in his possession anything believed to have been stolen; or where reasonable grounds for suspicion exist that such person or vehicle is carrying an unlawful material; or where a person is carrying a certain type of material at an unusual time; or in a place where a number of burglaries or theft are known to have taken place recently; etc.
Ultimately, there must be reasonable suspicion that the person, being searched without a warrant, has stolen or has unlawful material in his possession. Where there is no reasonable reason for the search, the aggrieved person may sue for unlawful search and harassment.
Also, it was held by the court in the case of KARUMA v R³ that a police officer can stop and search vehicles on the road without a warrant. Moreover, during the course of the search, if the police officer finds a material which he reasonably believes to have been stolen or an unlawful material, he may seize it.
Can a Police Officer Lawfully Search any Private Citizen’s House or Property Without a Search Warrant?
As a general rule, the answer is in the negative. Generally, premises cannot be searched without a search warrant. Hence, any search of any premises without a search warrant is unlawful and a breach of section 37 Constitution of the Federal Republic of Nigeria.
However, there are a few exceptions to this general rule. Pursuant to Section 147 Custom and Excise Management Act, A custom officer may enter or break into a place where he reasonably believes that illegally imported goods are kept. Also, in Section 32 NDLEA Act⁴ An officer of the NDLEA or police officer, in order to recover drugs kept in premises may enter and search such premises without a search warrant. Furthermore, pursuant to sections 12 and 152 of the Administration of Criminal Justice Act 2015 (ACJA) It is expressly stated inter alia that a police officer acting under a warrant of arrest or having authority to arrest a person reasonably believes that the person has entered into any premises, can enter into the premises to search for the person to be arrested notwithstanding the fact that he had no search warrant, etc.
Can A Police Officer Search Any Private Citizen’s Phone, Laptop Or Electronic Device Without A Search Warrant?
The answer is in the negative, this must be done with a search warrant. The Police will have the right to search laptops and phones if a search warrant has been obtained or if they have reasonable suspicion that the laptop or phone in the person’s possession is stolen or was obtained unlawfully.
According to the recently passed Digital Rights and Freedom Bill, Government agencies or the Police shall obtain a search warrant based on probable cause before obtaining transactional data in real time about when and with whom an individual communicates using email, instant messaging, text messaging, the telephone or other communication technology.
In addition, a search of things may be conducted with or without a search warrant depending on the circumstance. For instance, for the search of a person’s bag there is no need for a search warrant. On the other hand, for the search of an aircraft a search warrant is needed. Also, search warrant is needed to lawfully search a vessel.
Ironically, powers of search of things without warrant is also, as a general rule, conferred on customs officers, the Federal and State Task Forces of NAFDAC etc. The laws also permit medical or scientific examination of any person who is reasonably suspected of concealing an incriminating item in the latent part of his/her body, by a Police Officer, a Medical Practitioner or any certified professional with relevant skills, acting at the request of a Police Officer.⁵
Law enforcement agencies, including the police are expected to maintain law and order during search. When a search is being conducted by a police officer, whether with a search warrant or not, he/she must do so within the ambit of the constitution and shall not violate the human rights of the persons being searched or found in the premises. It is trite that when search is been conducted it shall be made with strict regard to decency and as a general rule it shall be made by a person of same sex. It is also worthy to mention that for any police officer to exercise the power to ‘stop and search’ he must be in uniform and visibly wear a visible identity card as expressly provided for in Section 50 of the Police Act 2020.
It is unfortunate that there have been several reports of abuse, harassment and extortion of citizen by the Nigerian Police force and other related law enforcement agencies. Hence, I recommend that the modus operandi of the Nigerian Police Force must be under strict scrutiny especially on the issues of search, arrest and detention. Moreover, after an unlawful search or harassment, aggrieved citizens should not hesitate to engage the services of a lawyer and make a formal complaint, claim for compensation and public apology where need be.
CAP. P19, Laws of Federation, 2004
(1955) 119 JP 157
CAP. N30, Laws of Federation, 2004
Sections 6(6) CPL, 127(1) & (2) CPCL, 5(6) ACJL, 2011, Section 11ACJA, 2015 and Section 4(4) NDLEA Act