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g a z e t t e
april
1982
In those circumstances such a detention will be short of
arrest as the policeman will have no intention at the
moment of arrest of initiating the criminal process.
In all cases in exercising his power under this section
the policeman must inform the suspect of the reason for his
(the policeman's) actions. As reasonable a suspicion must
exist here as in an ordinary arrest
91
and this is viewed not
just from the point of view of the arresting constable but in
the light of the circumstances as a whole.
92
Thus it has
been held unreasonable for two shabbily dressed
constables to arrest a citizen bringing his coat to the dry
cleaners who proposed to board a bus in disregard of their
inquiries of him.
93
But where a person makes as if to flee
94
or starts to make concealing movements
95
the powers are
properly exercised.
96
Further, the suspected person need not have stolen
anything but could merely have it in transit innocently; but
it must be in transit not just sitting on someone's
property;
97
and once there exists a reason for the detention
aspect of the power, the purpose of exercising it can
contemplate questioning. Thus in
Daniel
v.
Morrison
98
it
was held lawful for a constable, who seeing a car without a
tax disc and on questioning the owner and getting the
cheeky answer that the car was stolen, to detain the
suspect for further questions when he attempted to walk
away.
There seems no reason why such a power should not be
used. As Glanville Williams points out,
99
the section is to
the benefit of the citizen. Rather than arrest and then
search a person one would assume that an innocent citizen
would prefer, in circumstances where reasonable
suspicion could fall on him, to be stopped, questioned and
searched on the spot and then released if the suspicion is
discovered to be unfounded. But there is the obvious
danger of abuse, and such powers should only be given
where public policy or order clearly requires the risk of
innocent citizens suffering such indignity. More recently,
those powers have been given in like form to the police in
drugs cases,
100
although in drugs cases arrest would be
better, as a search to be useful must be absolutely
thorough; also in firearms cases;
101
and extensive powers
to stop and search vehicles have been given under Section
8 of the Criminal Law Act 1976. Those powers can arise
where a Garda, with reasonable cause, suspects that
offences under the Section have been, will be, or are being,
committed. He may stop any vehicle without cause, and,
without cause, search it. If, before or after such search, he
has reasonable cause to suspect the occupants are
criminals, whether intended, or past, or in the act, or where
they have evidence related to the commission or intended
commission of the offence, he may search them also. The
only limit on the power to stop and search a vehicle is that
the purpose must be to discover criminals or evidence
related to their crimes, actual or intended. The category of
crime includes murder, robbery, and all firearms cases,
none of which need be subversive in character. Whether
those powers should exist in all those cases is essentially a
political matter. They were passed at a time of great
political concern for the safety of the State and they do
make vast inroads into the liberty and privacy of the
citizen.
102
Search and seizure upon arrest:
The second police power to gather evidence arises as a
consequence of a valid arrest. Any evidence found on or in
the possession of an arrestee which is material evidence on
the charge for which he is arrested, or a charge in the
contemplation of the arresting officer, or appears, on
reasonable cause, to be stolen property or property in the
unlawful possession of the arrestee, may be retained by the
police for use at the trial of the person arrested, or at the
trial of any other person or persons on any criminal charge
in which the property is to be used as evidence. In that
manner is the rule stated in
Jennings
v.
Quinn.
103
The rule
seems quite reasonable, but two questions of controversy
arise: what is possession, and, whether the property of an
innocent third party can be seized or retained by the police
for use against an accused?
In
Jennings
v.
Quinn
103
this former question was not
considered by the Supreme Court. There, the police on a
backed extradition arrest warrant thoroughly searched the
applicant's house and seized anything of conceivable
relevance and subsequently obtained other property from
a garage owner in Cappoquin. In terms of the strict theory
of the common law such action was illegal but in
Dillon
v.
O'Brien & Davis
104
Palles C.B. was prepared to admit that
rent books and documents in the same room as the accused
were in his "possession" and under his control; and so also
in
Agnello
v.
U.S.,
105
cocaine seized from the pockets and
from the room where the arrest of the applicant took place
was lawful, and thus admissible in evidence under the rule
in
Weeks v. U.S.
106
However, the federal agents then went
to the bedroom of his house four blocks away and found a
can of cocaine. On appeal, the Supreme Court held the
second seizure contrary to common law, the goods being
out of Agnello's possession at the time of arrest, and
quashed his conviction. What the concept of "possession"
on arrest embraced was further elucidated in 1969 by the
U.S. Supreme Court in
Ted Chimel v. California.
107
This
was a case where the applicant, arrested under a coinage
offence in his own house, had that house searched from top
to bottom by the police. There Mr Justice Stewart stated
the common law rule extended only:-
"To search the person arrested in order to remove
any weapons that the latter might use to resist arrest
or effect his escape. Otherwise the officers' safety
might well be endangered and the arrest itself
frustrated. In addition it is entirely reasonable for the
arresting officers to search for and seize any
evidence on the arrestee's person in order to prevent
its concealment or destruction. And the area into
which an arrestee might reach in order to grab a
weapon, or evidentiary items, must, of course, be
governed by a like rule
There is ample justifica-
tion therefore for a search of the arrestee's person
and the area 'within his immediate control'
construing that phrase to mean the area from within
which he might gain possession of a weapon or
destructible evidence."
As regards the second question, in
Dillon v. O'Brien &
Davis,
104
Palles C.B. considered that the police were not
entitled to seize evidence in the possession of a third party,
because a legal mechanism, by way of subpoena 'duces
tecum', already existed to compel its production.
However, in
Elias v. Pasmore,
108
illegal serches bearing
the fruit of valuable evidence were justified on the grounds
of State necessity. This latter decision was used in
103