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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?

mwakili.com

Sources

Constitution of Kenya, 2010
- Article 31: Right to Privacy
- Article 49: Rights of Arrested Persons
- Article 50: Fair Hearing
National Police Service Act, 2011
- Section 24: Functions of the Police
- Section 58: Powers of Arrest
Evidence Act, Cap 80
- Section 76: Illegally Obtained Evidence

Introduction
Right to Privacy
Rights of Arrested Persons
Fair Hearing
Functions and Powers of the Police
Illegally Obtained Evidence
Conclusion

1. Introduction

The question of whether a case can be thrown out of court if a police officer forced entry into your car without suspicion of a crime and then found an illegal substance involves several legal principles. These principles are enshrined in the Constitution of Kenya, 2010, the National Police Service Act, 2011, and the Evidence Act, Cap 80. This response will explore these principles in detail.

2. Right to Privacy

Article 31 of the Constitution of Kenya, 2010 guarantees every person the right to privacy. This includes the right not to have:
- Their person, home, or property searched.
- Their possessions seized.
- Information relating to their family or private affairs unnecessarily required or revealed.
- The privacy of their communications infringed.

If a police officer forced entry into your car without any reasonable suspicion or warrant, this act could be considered a violation of your right to privacy.

3. Rights of Arrested Persons

Article 49 of the Constitution of Kenya, 2010 outlines the rights of arrested persons, including:
- The right to be informed promptly, in a language that the person understands, of the reason for the arrest.
- The right to remain silent.
- The right to communicate with an advocate, and other persons whose assistance is necessary.
- The right to be brought before a court as soon as reasonably possible, but not later than twenty-four hours after being arrested.

If the police officer did not follow these procedures, it could further complicate the legality of the arrest and subsequent search.

4. Fair Hearing

Article 50 of the Constitution of Kenya, 2010 guarantees the right to a fair hearing. This includes the right to:
- Be presumed innocent until proven guilty.
- Be informed of the charge, with sufficient detail to answer it.
- Have adequate time and facilities to prepare a defense.
- Challenge the evidence presented.

If the evidence was obtained through a violation of your constitutional rights, it could be argued that using such evidence would compromise your right to a fair hearing.

5. Functions and Powers of the Police

Section 24 of the National Police Service Act, 2011 outlines the functions of the police, which include:
- Maintaining law and order.
- Preserving peace.
- Protecting life and property.
- Preventing and detecting crime.
Section 58 of the National Police Service Act, 2011 provides the police with the power to arrest without a warrant under certain conditions, such as:
- If the person is committing or has committed a cognizable offense.
- If the officer has reasonable grounds to believe that the person has committed or is about to commit an offense.

If the police officer did not have reasonable grounds to suspect that a crime was being committed, the forced entry into your car could be deemed unlawful.

6. Illegally Obtained Evidence

Section 76 of the Evidence Act, Cap 80 deals with the admissibility of evidence obtained illegally. The general principle is that evidence obtained in violation of constitutional rights is inadmissible in court. However, the court has discretion to admit such evidence if it is in the interest of justice.

The court will consider factors such as:

The nature of the violation.
The importance of the evidence.
The seriousness of the offense.
Whether the admission of the evidence would bring the administration of justice into disrepute.

7. Conclusion

In summary, if a police officer forced entry into your car without any reasonable suspicion of a crime, this could be a violation of your constitutional rights, particularly the right to privacy. Any evidence obtained as a result of this unlawful search could be deemed inadmissible in court under Section 76 of the Evidence Act, Cap 80. However, the final decision rests with the court, which will consider various factors to determine whether the evidence should be excluded.

Therefore, it is possible that the case could be thrown out of court if the evidence is deemed inadmissible due to the violation of your constitutional rights. However, this is not guaranteed and would depend on the specific circumstances and the court's discretion.