THE POWER OF SEARCH INCIDENTAL TO ARREST
(a) Search of the person
There exists at common law a right to search an arrested person to obtain possible evidence and to ensure that the person has no weapon or other means of injuring him or herself or others while in custody. There appears to be some difference of judicial opinion about the circumstances in which the power may be exercised.
The leading New Zealand case is the Court of Appeal decision in Barnett and Grant v Campbell (1902) 21 NZLR 484. In delivering the judgment of the Court of Appeal Cooper J stated
"We think it may be taken to be settled law that a constable who is legally authorised to arrest an accused person may, at the time of such arrest, and as incidental to it, seize and take possession of articles in the possession or under the control of the accused person, as evidence tending to show the guilt of such person. This is a power at common law, and exists as an incident to the arrest, and this whether the arrest is one which may be made without a warrant, or, as in the present case, one which can only be made under a warrant, and whether the offence is of the nature of a felony or merely a misdemeanour. It is founded on the right to search a person upon his arrest; and the police are entitled to hold and detain property so taken as instruments of proof against the accused, subject to the right of the proper authority to direct such property to be restored to the accused person if it is found that it is in no way connected with the charge made against him. . ."
In the recent case of Craig v The Attorney-General (M609/85 Auckland Registry 21 August 1986) Tompkins J adopted the statement of the law set out above from Barnett and also referred with approval to Lindley v Rutter(1981) 72 Cr App R 1 and Brazil v Chief Constable of Surrey [1983] 1 WLR 1155. In the latter, by reference to Christie v Leachinsky [1947] AC 573, Goff L J had concluded that, unless the reason is obvious, a person should not be searched without first being told the reason for the search.
Tompkins J adopted the statement of the law set out in 11 Halsbury's Laws of England 4th ed at 121:
"Search of persons arrested. There is no general common law right to search a person who has been arrested but such a person may be searched if there are reasonable grounds for believing (1) that he has on his person any weapon with which he might do himself or others an injury or any implement with which he might effect an escape or (2) that he has in his possession evidence which is material to the offence with which he is charged."
and summarised the current New Zealand position as follows at pages 25-26 of the judgment:
"The police have, at common law, the right to search a person on his arrest. A search involves an infringment of a person's right to freedom and privacy. It can cause embarrassment. It can be regarded as an indignity. So the police should only exercise the right to search on arrest for good reason. The officer must satisfy himself that the search is reasonably necessary. What may amount to good reason or a reasonable necessity must depend on the particular circumstances. The possibility that the arrested person may have a weapon or some other means of injuring himself or others, something that may facilitate his escape or something that may be evidence relevant to the commission of an offence, are all obvious reasons justifying a search. There may, depending on the circumstances, be others. And I agree with Goff L J that it accords with current concepts of the rights of the individual that a person about to be searched is entitled to be told of the reason unless that course is impractical or the need to search is so obvious that to state a reason is unnecessary. But what must be clearly emphasised is that to search an arrested person for no reason other than his arrest is unwarranted and unlawful." (Our emphasis)
There is, however, an apparent contradiction between the first sentence of this passage from Craig and the last. The first sentence reflects the Court of Appeal's decision in Barnett and Grant v Campbell that there is a right to search a person on arrest. By concluding that "to search an arrested person for no reason other than his arrest is unwarranted and unlawful", the judgment appears to move from being purely declaratory to a modification of the existing law in New Zealand by adding an overall requirement of reasonableness which is consistent with the English authorities as summarised in the above passage from Halsbury. In considering that requirement Tompkins J noted that the possibility that the arrested person may have a weapon or something that may facilitate escape or be evidence of an offence would be obvious reasons justifying a search. In almost every case there will be such a possibility so, on the reasoning in Craig, a search would be "a reasonable necessity" in almost all cases.
There is an important distinction between a search immediately upon arrest (as dealt with in Barnett and Grant v Campbell) and a search after a person is received into custody at a police station (dealt with in New Zealand by section 57A of the Police Act 1958. See Appendix 2). The statement of the English law contained in Halsbury appears to be applicable to both situations though the authorities on which it is based relate to searches conducted in police stations.
In considering the appropriate standard of belief before a search incidental to arrest should be permitted, regard should be had to the situation facing the arresting police officer. The United States Supreme Court observed in United States v Robinson, 414 US 218, 235 (1973):
"A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment . . . The authority to search the person incidental to a lawful custodial arrest, while based on a need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect . . . It is the fact of the lawful arrest which establishes the authority to search . . ."
This topic was also considered by the Canadian Law Reform Commission, which commented:
"Canadian case-law appears to stipulate that a warrantless search incidental to arrest is authorised if it is a reasonable precaution in the circumstances of the case to prevent access by the arrested person to destructible evidence or to items that could endanger human safety or facilitate an escape.
The Commission is of the view that this position is a sound one. The power to perform a personal search incidental to an arrest should not be automatic in all cases . . ."
The search immediately upon an arrest is essentially cursory in nature. We accept that a search should not automatically follow arrest without any regard for the circumstances, but we are of the view that to predicate it on the arresting officer having reasonable grounds to believe the arrested person had a weapon or material evidence is too high a requirement.
In every case the arresting police officer should consider the need for a search. Unless the circumstances are such that the officer can be satisfied there is no danger of the arrested person either possessing a weapon or disposing of evidence it will be prudent for a search to be made.
(b) The spatial limits of the search
The next issue is how wide the permitted scope of the search should be. In its Report on Search and Seizure (Report 24) the Law Reform Commission of Canada proposed (at p 36) that the arresting officer should, in addition to a search of the person, be able to search without warrant the spaces within the person's reach at the time of the arrest.
In Chimel v California 395 U.S. 752 (1969) the United States Supreme Court stated that a search incidental to arrest can only extend to the arrestee's person and the area within his immediate control.
We consider that the Chimel concept of "places and things within the immediate possession or control" of the person arrested is a reasonably precise test for limiting the scope of the search which also has a sufficient degree of flexibility to accommodate the exigencies of individual cases. This limitation is also consistent with the reasons for search incidental to arrest, namely the denial of access to relevant objects (evidence) that may be destroyed or concealed or weapons or items that could endanger human safety or facilitate escape. This would suggest that the scope of the power should be restricted to spaces immediately accessible to the accused at the time that the search is performed.
For example, where a person is arrested in his or her home, or on other premises, a search incidental to arrest should not be permitted to develop into a general search, without warrant, of the entire premises. A search warrant should first be obtained if such a general search is thought necessary. If a person is arrested while in a motor vehicle, the search incidental to arrest should not lawfully extend beyond the arrested person's immediate area of access.
After an arrested person has been taken into custody there is unlikely to be any danger of his or her obtaining access to concealed weapons. We are concerned then to restrict the ambit of a search incidental to arrest to only those places or things to which the arrested person may have had access immediately upon arrest in order to destroy or conceal evidence. Accordingly, we recommend the enactment of the following statutory provision:
"A constable may search without a warrant a person who has been arrested and the place and the things which that person has readily at hand where the constable believes that it is prudent to do so."
We think the words "readily at hand" best express the concept proposed.