Ask a lawyer:
If a police officer forced entry into my car without suspicion of a crime, then found an illegal substance, can the case be thrown out of court?

Table of Contents

1. Introduction

2. Unlawful Search and Seizure

3. Exclusionary Rule

4. Exceptions to the Exclusionary Rule

5. Conclusion

Introduction

This question concerns the legality of a police search and seizure of evidence without a warrant or reasonable suspicion. The Kenyan Constitution and various Acts govern the rights of individuals against unlawful searches and seizures.

Unlawful Search and Seizure

The Kenyan Constitution guarantees the right to privacy and security of the person. This right is enshrined in Article 28 of the Constitution, which states:

Article 28: Right to privacy and security of the person

(1) Every person has the right to privacy, which includes the right not to be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence.

(2) Every person has the right to the security of their person, which includes the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment.

Furthermore, Article 49 of the Constitution outlines the right to protection from arbitrary arrest and detention.

Article 49: Right to protection from arbitrary arrest and detention

(1) Every person has the right to be protected from arbitrary arrest or detention.

(2) A person shall not be arrested unless there is reasonable suspicion that they have committed an offence.

(3) A person arrested shall be brought before a court as soon as reasonably practicable.

(4) A person arrested shall be informed of the reason for their arrest.

(5) A person arrested shall be allowed to consult with a lawyer of their choice.

(6) A person arrested shall be allowed to communicate with their family or friends.

(7) A person arrested shall be allowed to have access to medical care.

The Criminal Procedure Code further regulates the powers of police officers to conduct searches and seizures. Section 49 of the Code outlines the circumstances under which a police officer may conduct a search without a warrant.

Section 49: Search without warrant

(1) A police officer may, without a warrant, search any person or place if he has reasonable suspicion that such person or place contains anything which may be evidence of the commission of an offence.

(2) A police officer may, without a warrant, search any person or place if he has reasonable suspicion that such person or place contains anything which may be used in the commission of an offence.

(3) A police officer may, without a warrant, search any person or place if he has reasonable suspicion that such person or place contains anything which may be dangerous to the public.

In your case, the police officer forced entry into your car without any reasonable suspicion of a crime. This action constitutes an unlawful search and seizure, violating your constitutional rights to privacy and security of the person.

Exclusionary Rule

The Exclusionary Rule is a legal principle that prohibits the use of illegally obtained evidence in court. This rule is based on the principle that evidence obtained in violation of the Constitution is inadmissible in court. The Kenyan courts have adopted the Exclusionary Rule as a means of deterring police misconduct and protecting the rights of individuals.

The Exclusionary Rule is enshrined in Section 78 of the Criminal Procedure Code, which states:

Section 78: Evidence obtained in violation of the Constitution

(1) No evidence obtained in violation of the Constitution shall be admissible in any court.

(2) The court may, in its discretion, exclude any evidence which it considers to have been obtained in a manner that is unfair or oppressive.

Therefore, the illegal substance found in your car may be inadmissible in court due to the unlawful search and seizure.

Exceptions to the Exclusionary Rule

While the Exclusionary Rule is a powerful tool for protecting individual rights, there are certain exceptions to its application. These exceptions are designed to balance the need to protect individual rights with the need to ensure the effective administration of justice.

Some exceptions to the Exclusionary Rule include:

• Plain View Doctrine: This exception allows the admission of evidence that is in plain view of a police officer who is lawfully present at the scene.

• Consent: If a person consents to a search, the evidence obtained may be admissible in court.

• Exigent Circumstances: This exception allows the admission of evidence obtained in emergency situations where there is a risk of imminent harm or destruction of evidence.

In your case, none of these exceptions appear to apply. The police officer did not have a warrant, reasonable suspicion, or your consent to search your car. There were no exigent circumstances justifying the forced entry.

Conclusion

Based on the Kenyan Constitution and the Criminal Procedure Code, the police officer's actions in forcing entry into your car without reasonable suspicion constitute an unlawful search and seizure. The evidence obtained as a result of this illegal search may be inadmissible in court due to the Exclusionary Rule. However, it is important to note that the court may consider the specific circumstances of the case and apply any relevant exceptions to the Exclusionary Rule.

It is advisable to consult with a lawyer to discuss the specific facts of your case and explore all legal options available to you.