THE POLICE IN Jamaica conduct body searches on a daily basis but while some people will protest, most will submit and give tacit consent for the police to conduct searches to their person and property. The real question is whether or not you can refuse to be searched. This week 'Legal Eagle' explores the question.
The Constitution of Jamaica at section 19 provides that: "Except with his own consent, no person shall be subject to the search of his person or his property or the entry of others on his premises". However, the said section provides that your right of privacy is subject to the need for defence, public order, public morality, public safety among other things. The first point here is that the Constitution does not provide an absolute right to privacy.
There are several pieces of legislation which provide directly and indirectly the right to search under certain conditions. For instance, section 15 of the Constabulary Force Act provides that: "It shall be lawful for any constable, without warrant, to apprehend any person found committing any offence punishable upon indictment, or summary conviction, and to take him before a Justice who shall enquire into the circumstances of the alleged offence and either commit the offender to the nearest jail, prison or lock-up to be thereafter dealt with according to law". This section does not clearly provide for searches but to admit anyone to prison or lock-up, the custody officer would have a right to search anyone to be admitted to jail, prison or lock-up. However, section 18 of the said Constabulary Force Act makes clear provision for searches. It sates: "It shall be lawful for any constable to apprehend without warrant any person known or suspected to be in unlawful possession of opium, ganja, morphine, cocaine, peka peow or drop pan, and take him forthwith before a justice of the peace who shall thereupon cause such person to be searched in his presence".
SEIZE FIREARM
The law also makes provision in the Firearms Act for the police to seize a firearm or ammunition if the person carrying the firearm and/or ammunition fails to produce a licence or permit. The police may seize a firearm which is concealed if the person on whom the firearm is concealed admits to be carrying the firearm but fails to produce or licence or permit for it. The police could not be expected to be effective in carrying out its job under this Act without searching the person who fails to account to the police for having a firearm and/or ammunition.
At common law, the police as well as ordinary citizens may make an arrest if there is reasonable suspicion that a felony has been, is being or is about to be committed. Having made the arrest, it would be lawful and certainly acceptable to search the person arrested for any evidence of the crime or to ensure that while in police custody, the person is not in possession of any dangerous weapon, object or substances.
In sum, it seems to me that except where the law expressly provides for a search or where the person is arrested and is being processed to be admitted to police custody, in all other cases, the permission of the person being searched should first be sought and obtained before the police or any other person embark on a search. Those who have been unlawfully searched may recover damages by filing a claim against the police and/or the Attorney General for Jamaica and any other persons involved in the search.
Keith N. Bishop is an attorney-at-law and partner in the firm of Bishop & Fullerton. He may be contacted by email at knb@bishopfullerton.com
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