By Oluwatosin F. Emmanuel, Esq.
(A FAQ Approach)
As a Nigerian, there is a high likelihood that at some point in your life, you witnessed a search exercise being conducted on a car, a person or a building; particularly scenes of a Police Officer requesting to be granted access to the contents of a suspect’s mobile device or personal computer, with the usual “what do you do for a living” questions.
This publication is an attempt to give an exposition on the appropriate and expected conducts of the Nigerian Police Force and the rights of the citizens in a Frequently-Asked-Questions and practical approach.
DOES THE POLICE HAVE THE RIGHT TO STOP AND SEARCH?
A search can be conducted on things, persons and premises for the purpose of gathering evidence of the commission of an offence or a crime. Where a search is to be conducted on a person or thing, the Police Officer may do so WITH OR WOTHOUT a search warrant. But in the case of a search to be conducted on a particular premises, a search warrant MUST be tendered at the point of entry, except in exceptional situations.
This points out the first right to note – Right to be shown a Search Warrant before entry upon your property for the purpose of searching same, and where the Police Officer does not plan to search the premises but a person within the premises, it needs to be for the purpose of arresting the person, not just to search the person. However, it must be noted that arrest warrants come with an inherent right of the Police to conduct search on the suspect.
Stop and Search is an exercise conducted by the Police on a person that is suspected to have committed, be committing or plan to commit a criminal act; where the person is temporarily detained (not necessarily within four walls i.e. a cell) and searched. An example is the stop and search conducted on highways on drivers and their passengers.
By the provision of Section 29 of Police Act, “a police officer may detain and search any person whom he reasonably suspects of having in his possession or conveying in any manner anything which he has reason to believe to have been stolen or otherwise unlawfully obtained”. Therefore, the Police have the right to stop anyone or any vehicle, for the purpose of searching same.
It should however be noted that although the Police have the right to stop and search, this right is however not absolute, as the Police officer must reasonably suspect that the person has stolen or unlawfully obtained a property in their possession.
A REMINDER – the ONLY reason a Police Officer should stop and search you is when they REASONABLY SUSPECT that you have stolen or unlawfully obtained a property in your possession. Not even when they suspect you to be in possession of incriminating items (like drugs or weapons). Therefore, as soon as you are stopped, ask questions to verify how and why the Officer suspects that you have stolen something and what the item he looks to recover upon conducting the search is.
Further, it must be noted that a search is only conducted for hidden items that the Police officer
- REASONABLY SUSPECTS to be stolen; and
- Is in the possession of the suspect.
Where the incriminating item is obvious to the officer, he wouldn’t need to conduct a search for what is already obvious, but to stop and arrest. Also, the offence would not need to be limited to stealing, but any offence, as one of the duties in Section 4 of the Police Act is to prevent and detect crime, apprehend offenders etc.
We should also note that search on a female person must only be conducted by a female officer, this is the position of the Law. A physical search on a female person by a male officer would be unlawful.
DOES THE POLICE HAVE THE RIGHT TO SEARCH THE CONTENT OF YOUR MOBILE PHONE AND OTHER ELECTRONIC DEVICES?
A number of the Police Officers in Nigeria have developed the habit of stopping people for the sole purpose of detaining and gaining access to their electronic devices to ultimately conduct search on their emails, chat applications, text applications, call history, contacts, gallery etc. to gather evidence of the commission of an offence.
With reference to Section 29 of Police Act, the Right of the Police Officer ends at the detention of the device, which is only appropriate where the device is suspected to have been stolen, and it must be followed by the arrest of the person in possession of the stolen item (in this case, the mobile device), as the person and the device remain the aim of the search i.e. to search and recover from the suspect’s possession the stolen item that would serve as evidence to prove that the suspect is guilty of stealing, and not searching or gaining access to the content of the phone.
In other words, the Police Officer only needs access to the hardware, not the software.
Section 37 of the Constitution of the Federal Republic of Nigeria 1999 provides for the protection of individuals’ Rights to Private and Family Life thus: “The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”
Hence, citizens are protected under the Constitution against having their correspondence, telephone conversations and telegraphic communications infringed upon by the Police.
WHAT IS THE RIGHT PROCEDURE?
The provision of Section 37 of the Constitution gave birth to the requirement of Search Warrant before infringing on the Constitutional Right of “…privacy of citizens, (and) their homes…”, as a Police Officer looking to conduct search on any home or premises would need to acquire a Warrant from the authorized persons (Judicial Officers), seeking same on the grounds provided for in Section 45 of the Constitution (i.e. in the interest of defense, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons) before the Warrant can be granted.
SIMPLY PUT – “I know you have a right to private and family life, but for the interest of defense, public safety, public order, public morality and public health, I will need a Warrant to deprive you of the right”
Further in that same Section 37 of the Constitution, “correspondence, telephone conversations and telegraphic communications” was mentioned. Therefore, to infringe these rights, the Police Officer would need a Warrant to access and search the content of any electronic device.
This has been well stressed by the provision of Section 45 (1) of Cybercrimes (prohibition, prevention, etc.) Act, 2015, which provides that “A law enforcement officer may apply ex parte to a Judge in Chambers for the issuance of a warrant for the purpose of obtaining electronic evidence in related crime investigation.”
EVIDENTIAL RULE ON ILLEGALLY OBTAINED EVIDENCE
Notwithstanding the above-stated rights, notice must be had to the combined interpretation of Sections 14 and 15 of Evidence Act and the case of Kuruma v. The Queen (1955) AC 199, which established the principle that incriminating items recovered in the course of an illegal search is admissible in evidence once it is relevant to the facts in issue, UNLESS the desirability of admitting the evidence is outweighed by the undesirability of admitting the evidence. In other words, even though the Police Officer does not make use of a Warrant where he should, it will not stop the Court from admitting the items recovered against the Defendant, unless the weight of not admitting the evidence is outweighed by the desire to admit it (i.e. the Court’s discretion).
In Agagu & Ors v. Mimiko & Ors. (2009) 7 NWLR (pt. 1140), it was held that “The denial of an ungentlemanly officer of the security services does not refract from the evidential value of or weight to be attached to the documents which are in any case relevant. The Supreme Court and indeed this Court have held on a number of cases that evidence relevant to a case is admissible, however obtained. The illegality may only attach to the person who obtained it illegally” Per ABDULLAHI, J.C.A. (Pp. 80-81, paras. B-A).
CONCLUSION AND RECOMMENDATION: A PRACTICAL APPROACH
It is advisable that you take caution in any relation with Police officers for your own safety. If you are stopped, you should follow the below steps:
The most important step is to look right at the Police officers’ chest pocket and take note of the officers’ names and if you can, put the proceeding on a record (make sure the officer is not aware of this).
Ask to be informed of the reason you got stopped. If he attempts to search, draw his attention to the provision of Section 29 of the Police Act and request to know what he suspects you could have stolen. Answer all questions politely and satisfactorily.
If upon informing them of the above Section and answering their questions, they insist on a search, inform them that you do not believe that they have reasonable grounds to request a search as you believe you have answered their questions satisfactorily and to the best of your knowledge. If the officer insists or becomes aggressive, comply, however, inform them that you will be raising a formal complaint of unlawful search of you and your property. If the Police officer proceeds with the search, comply throughout.
After the search is completed, you should either raise a formal complaint or contact your Lawyer to make a formal complaint and necessary civil suit, claiming compensation and other necessary exemplary measures for unlawful search and harassment.
OLUWATOSIN F. EMMANUEL, ESQ. is the Publicity Secretary, NBA-YLF Abuja (Unity Bar)