SEARCH WARRANTS & RIGHT OF ENTRY

There can be any number of reasons why the Gardaí may wish to search you or your house. Especially where you are sharing a house with several other tenants. This can be a scary process if you don't understand the ins and outs of it.
Read on to find out what is involved in this process plus what your rights are in such situations. 


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There are a number of statutory provisions which allow the Gardaí to enter a premises for the purposes of searching, prevention of crime, saving life or to detain any suspects therein.

RIGHT OF ENTRY

S.12 of the Criminal Damage Act, 1991 allows Gardaí (or anybody for that matter) to enter a premises where there is reasonable belief that an illegal act is being committed or is about to be committed. There is also a right of entry for the purposes of saving 'life and limb'. Flaherty J for the Supreme Court has directed that in such situations the right to life will supersede the right to refuse entry and anybody deemed to be acting in such a heroic manner will seldom be liable for a breach of the occupier's rights. - Thomas v Sawkins [1935]. However, this is not a unilateral right to enter any dwelling at will. There must be a genuine reason to enter. If no such reason exists then the Gardaí, or whomever the entrant is, will be in breach of the occupant's Constitutional Right to Inviolability of the Dwelling under Article 40.5. 


S.7 of the Road Traffic Act 2010 allows the Gardaí to enter the general vicinity, or curtilage, of a property in order to carry out their statutory function (i.e. keep the peace & arrest suspects), in relation to road traffic offences. However, this provision does not allow for access to the dwelling itself. Part 12 of the Pires Principles states that "an arrest may be invalid if, in the absence of lawful authority or consent of the owner, it is carried out on private property." - DPP v Pires [2015]

There is a generally accepted implied consent for Gardaí to enter onto private property such as a garden or yard, particularly when investigating a crime, but this may be withdrawn by the owner of the property or lawful occupier at any time. Once the property owner or occupier has withdrawn his or her consent to the Gardaí's presence on the property then they must immediately withdraw to outside the curtilage of the property, unless some other power of entry exists such as where a crime is in the process of being committed. - DPP v Forbes [1994]

S.6 of the Criminal Law Act, 1997 provides for a 'general' right of entry to a property in order to make an arrest of a person for an arrestable offence, with or without an arrest warrant. The legislation mentioned specifies under S.6(1) that, where an arrest warrant or order of committal has been issued, a Garda may enter a premises, including a dwelling, where the person sought normally resides or where the Garda believes that person to be.

Where no arrest warrant has been issued, but the Garda wishes to enter the premises in order to arrest a person for an arrestable offence and where that premises is a dwelling, the Garda must obtain the consent of the occupier before entering. There are some exceptions to this rule:  

   A) Where the Garda has observed the wanted person entering the premises (known as 'Hot Pursuit'), or

   B) Where the Garda reasonably believes that the person would likely abscond in order to avoid justice before a         warrant of arrest could be obtained (such as where the Gardai happen upon a wanted suspect in a house during            a search), or

   C) Where the Garda reasonably believes that, before a warrant of arrest could be obtained, the person sought would         commit an arrestable offence, or

   D) Where the wanted person ordinarily resides at that dwelling.

When seeking entry under S.6 with the intention of making an arrest, the Gardaí must make said intention very clear to the occupants of the premises when seeking entry. Failure to do so may render the arrest unlawful. 

SEARCH WARRANTS

Gardaí in possession of a warrant to search a premises, including a dwelling, and who intend to make an arrest as part of that search, must declare this intention at the outset when requesting access to the premises. If the Gardaí do not make this declaration and the search warrant later turns out to be defective then the resulting arrest, detention and any information gathered may be unlawful and inadmissible in court.

This was confirmed by the Supreme Court in Damache v DPP [2012], a case which found that the search warrant provision under S.29 of the Offences against the State Act 1939 was unconstitutional (This statute was subsequently effectively replaced by S.1 of the Criminal Justice (Search Warrants) Act, 2012). Following the case of DPP v JC [2015], however, the current position of Irish Courts is that evidence which was obtained unconstitutionally will be admissible, as long as the Gardaí can show that the breach of the Constitutional right(s) infringed upon was inadvertent or accidental. Trivial errors on the part of the Gardaí such as a typo on a warrant will generally not render any evidence obtained as inadmissible. 

S.10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 (as amended by S.6 Criminal Justice Act 2006)  allows a Garda, of Sergeant rank or above, to apply to a District Court judge for a search warrant. The Garda must outline to the judge all the reasons why he or she believes that evidence may be found during the search. Once issued, the warrant will last for one week and permits multiple entries. It also allows for the use of force to gain entry. The warrant gives the Gardaí the power to search the premises and any persons found within and also any other persons who come upon the scene during the search. The Garda named on the warrant must be present at the search but may be accompanied by other Gardaí or associated agency personnel as necessary, such as officials from Tusla, Revenue, Customs, HSA, etc.


DRUGS SEARCH WARRANTS

S. 26 of the Misuse of Drugs Act 1977 (as amended by the 1984 Act) prescribes for warrants to be issued by either a District Court judge, Senior Garda or a Peace Commissioner. This essentially allows Gardaí the opportunity to obtain a warrant any time day or night. Under this Act the warrant will only be issued once the judge, Senior Garda member or Peace Commissioner is satisfied of the drugs offence related information that the Gardaí are basing the warrant upon. In emergencies or time sensitive situations a Garda Superintendent, independent of the drugs investigation in question, may issue a warrant. Garda authorised warrants expire after 24 hours whereas a drugs warrant issued by a judge permits entry for up to one month from the date of issue.

Gardaí with a Drugs Search Warrant issued under S.26 have the right to use force to gain entry and may arrest and detain, without warrant, any person found therein.  


OTHER FORMS OF SENIOR GARDA ISSUED WARRANTS

S.1 Criminal Justice (Search Warrants) Act, 2012

S.8 Criminal Justice (Drug Trafficking) Act, 1996

S.7 Criminal Justice (Surveillance) Act, 2009

S.5 Prevention of Corruption (Amendment) Act, 2001

S.14 Criminal Assets Bureau Act, 1996

S.16 Official Secrets Act, 1963


STOP AND SEARCH

Stop and Search can often be a contentious practice, particularly when carried out against ethnic minorities. Yet the practice is certainly a very effective method of policing. You can see the intention; one is less likely to carry drugs or offensive weapons in a place where the Gardaí may stop and search them.

There is no statutory provision in law that allows Gardaí to carry out a search on a person simply for the purpose of carrying out a search. However, Gardaí are obliged at common law to prevent and detect crime - DPP (Stratford) v Fagan [1994]. This means that a Garda may legally approach, and talk to, any person they come in contact with. The Garda does not need to have formed any particular reason of suspicion regarding the person in order to speak to them and may ask to carry out a consensual search of their person and bags. This may be slightly aggravating to an innocent civilian and, of course, you are entitled to refuse to consent to the search. Bear in mind, however, that the Garda may well have legitimate cause to suspect the person of an offence and is merely implementing a calm and risk-free strategy in order to search the person. Where sufficient cause exists, the Garda may detain said person and convey them to a Garda station to be searched.

Where appropriate, searches should be carried out at a Garda Station in order to avoid embarrassment to the individual. In order to comply with the privacy rights prescribed under Article 8 of the European Convention on Human Rights, Gardaí must only carry out a search of a person where doing so is proportionate and necessary in achieving a legitimate aim (such as keeping the peace and deterring crime). Where a person refuses to consent to a search, but there are compelling reasons for the Gardaí to demand one, there are a number of statutory provisions which Gardaí can draw on to legitimize the search, such as:

S.16 of the Firearms and Offensive Weapons Act, 1990 allows a Garda to carry out a search, in a public place, of a person whom they have reason to believe is carrying an offensive weapon such as a knife or imitation firearm.

There is no specific provision for searching people who are suspected of being in possession of stolen property. There has to be some other compelling evidence to give the Garda a genuine cause to search individuals. That said, there is a very old law which applies to the Dublin Metropolitan Area only and that is S.29 of the Dublin Police Act, 1842. This statute gives the Gardaí the power to stop and search any vessel, boat, cart, or carriage and any person therein, which the 'constable' suspects may be carrying stolen property. These terms may be interpreted to include cars, etc. in modern times.

S.23 of the Misuse of Drugs Act, 1977 is very commonly applied and gives the Gardaí the power to stop and search any person, vehicle or any other form of transport which he or she reasonably believes to be carrying a controlled drug. The Garda may search any person, etc. there and then or else convey them to a Garda Station to carry out a search there. During the hours of darkness on public roads the Garda should take the person or vehicle to a Garda Station to carry out the search. Under S.23 Gardaí have the power to arrest, without warrant, anyone who refuses to comply with their instructions. Once arrested, you fall under the provisions of the common law doctrine of 'Search of Person upon Arrest'. This was essentially set out by the Supreme Court in DPP (Moyles) v Cullen [2014] IESC 7 and allows the Gardaí to search a detainee for the purpose of preventing a prisoner from harming themselves or anyone else.

Interestingly, there has been a sudden burst of interest in the subject in Ireland, with no less than two Supreme Court judgments in the past 4 years. The latest of these was handed down in the combined cases of DPP v Pires, DPP v Corrigan, DPP v Gannon [2018] IESC 51. For the most part, however, this decision followed the Supreme Court’s own previous decision in the first case; DPP (Moyles) v Cullen [2014] IESC 7. The Court noted that the law affords the arresting officer a “generous measure of judgment” on whether the use of such force is or is not justified on the facts of any individual case, and that “[a]n error of judgment in using force which he genuinely believes to be necessary will not render the arrest invalid or expose the officer to legal remedy, whether civil or criminal.” It also made it clear that the courts will be slow to review such operational decisions taken by police officers in the course of their duty.

S.30 of the Offences Against the State Act, 1939 empowers the Gardaí to stop, search, arrest and interrogate any person whom they suspect has committed or is about to commit, an offence scheduled under this Act. Such offences include but are not limited to:

(a) Murder, manslaughter or an offence under S.18 of the Offences Against the Person Act, 1861.

(b) Offences under the Larceny Act, 1916.

(c) Malicious damage to property involving the use of fire or explosive substances.

(d) Offences under the Firearms Acts, 1925 to 1971.

(e) Escape from lawful custody.

...plus much more than I can list on this forum. You can view the full 1939 Act HERE

All of the above named statutes are subject to Constitutionality requirements. Therefore, any warrant issued or carried out in circumstances repugnant to the Constitution of Ireland, 1937 will be held to be unconstitutional and any resulting arrest, interrogation and evidence gathered therefrom will be inadmissible in court unless the repugnant act or omission was clearly accidental and not standard operating practice for the Gardaí.


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