When carrying out police duties, investigating officers regularly want to search a means of transport or a home. If they are caught red-handed or have a search warrant, this is not a problem. Then they are allowed to search, even if they have not obtained permission to do so from the occupant or driver. The warrant should state, for example, who has requested it, in respect of which offence or offences it is requested, for which premises (object) and for which time.
Search/seizure in case of urgent need
Sometimes the authorisation cannot be awaited. For example, if the judiciary strongly suspects that the object to be seized is indispensable for criminal prosecution purposes. Then the (assistant) public prosecutor still has a power to search. Even if there is no written authorisation (yet) and no consent has been given by the person concerned. Whether an urgent situation actually existed can be tested afterwards.
Search without suspect
But now what if investigating officers want to search without That there is a suspect. A warrant will not be there then. This is only issued if there is a suspicion of a certain crime for which pre-trial detention is authorised. In that case, a search can only be conducted with the consent of the occupant or driver of the vehicle.
Consent given or not given?
But when is consent? That is often not at all clear to say. For example, is there consent if the resident silently lets people in? The Supreme Court ruled on this and other questions on 7 June. In brief, the ruling shows the following:
"Such consent must be freely and unambiguously given by the data subject, who must be sufficiently informed. It must be clear to the data subject for which investigative act consent is given. Consent may be evident from the statements and/or conduct of the data subject. If there are facts and circumstances which imply that the citizen concerned has not been able to freely determine his/her will regarding the granting of consent, voluntary cooperation does not exist.
The person concerned is free to withdraw the consent given, even after the investigation for which consent was given has started. From the moment of such withdrawal, the investigative act in question must cease unless that investigation can be continued on another basis."
This provides clarity. Silent entry is thus insufficient in itself to constitute consent. Even if someone only objects in any way, it is difficult to say that there is the granting of voluntary and unambiguous consent. The same is true if the resident/driver is misled or coerced to some extent by investigating officers. Even then, voluntariness does not exist. It is important to know this because, according to the Supreme Court, investigating officers are not obliged to make it clear to an unsuspecting citizen that he does not have consent need to give.
Mode of consent should be evidenced by the record
In order to test the existence of voluntary and unambiguous consent, the relevant record must state the manner in which the person concerned consented to the performance of a particular investigative act. The greater the intrusion into personal privacy will be - for example, if it involves a search of a home rather than a car-, stricter requirements will be imposed on the formation of the consent on the basis of which the investigative act takes place.
What are the legal consequences of an unlawful search?
It happens less and less often that breaches of form lead to the exclusion of evidence. Penalty reductions are more common in such cases. Nevertheless, due to the importance of the rule violated, the seriousness of the omission and the prejudice caused by it, in certain cases exclusion of evidence may still be chosen. This may be the case if the right to a fair trial is also compromised. This could be the case if the minutes do not sufficiently reflect the manner in which consent was allegedly given. That way, the course of events cannot be tested, which may be considered contrary to the 'fair trial' principle.
If a search has taken place in your case and the findings are used against you, the Supreme Court's brand new ruling could provide a solution.
Mr. D.M. Penn