This article explains the circumstances in which the police may lawfully search you, or your car, or your home, and the formalities which they must observe in doing so.
Comments, complaints, criticisms, etc., on this article are welcome; send them to the usual place.
Because the police have to have some way to go about their business without being sued every day, English law provides that there are certain circumstances in which a `constable' is permitted to search you, your car, or your house. In law, a `constable' is any policeman or woman, of whatever rank, and I will use the same term here for brevity. In general, a constable is allowed to use `reasonable force' to carry out a lawful search. The search will be unlawful if it is not carried out in the proper way, or outside of the specific powers that the law provides. You are entitled - in theory - to use `reasonable force' to resist an unlawful search. I wouldn't advise it, however, because very often the legality of a search cannot be determined until there has been a court hearing, and if it goes against you, you'll be looking at a conviction for `assaulting a constable in the execution of his duty' in addition to any other problems you may have. In any case, the constable is only doing his or her job, and doesn't deserve an outburst of violence just because his interpretation of the law turns out to be different to yours.
Your principle reasons for wanting to show that a search was unlawful are (i) to support a claim for damages against the police, and (ii) to ask the court to exclude any evidence that the search revealed. However, while a claim for damages will very often succeed, evidence gathered from an unlawful search will not necessarily be rejected by a court; on the whole UK courts find the `fruit of the the poison tree' quite palatable. The likelihood of unlawfully-obtained evidence being excluded depends on the extent and flagrancy of the illegality.
If you do not consent, then the constable will have to do one of three things: (i) give up; (ii) arrest you (which is a subject dealt with later), or (iii) invoke one of the specific grounds under which a stop-and-search is permitted. You can't be arrested for refusing to consent to a search that would otherwise be unlawful. Well, that's not quite true: you can be arrested, but the arrest itself would be unlawful.
Stop-and-search operations usually take place in the street, although the specific powers can usually be exercised in any public place. Although a `public place' is defined slightly differently in different legal provisions, it is generally safe to assume that it includes everywhere except your own home and its grounds, and other private dwellings you have a right to enter. Therefore, although a constable is not permitted to search you for stolen goods in your own back garden, he is permitted to search you for stolen goods in someone else's back garden, if you don't have a specific right to be there.
The general stop-and-search provisions are as follows. Unless stated otherwise, a search warrant is not required. Note also that although a constable in uniform is permitted to stop your vehicle and demand your name and address, this does not extend to a general right to search you or the vehicle unless one of the following applies.
If authorised by a senior police officer, for a period of 24 hours, a constable may search you and your vehicle for offensive weapons, regardless of whether he has reasonable grounds for believing that he will find any. However, the person who authorises the search must have reasonable grounds to believe that serious violence is likely to occur, or that weapons are being carried, in a particular locality [s60 CJPOA]. Again, the onus is on the authorising officer to show that his believe was justified. A constable may lawfully demand that you remove any item of clothing that he has reasonable grounds to believe you are using to conceal your identity.
If authorised by a senior police officer, for a period of up to 28 days, a constable may stop and search any person or vehicle for anything that may be used in connection with terrorism [s43 TA]. This is a far-reaching power, and its use must be notified to the Home Secretary, who is empowered to cancel it. Although the constable conducting the search need not have reasonable grounds for believing he will find anything, the person authorising it must believe it to be necessary for the prevention of terrorism.
Whether he is in uniform or not, a search will be unlawful unless the constable tells you his name and police station, what he is looking for, and what grounds he has for thinking he will find it (there are a few specialised cases where the constable does not have to give his name, but I don't propose to deal with these here. They are mostly concerned with investigation of terrorist offences) [s2(3) PACE].
A constable who is not in uniform is not empowered to stop you if you are driving a vehicle [s2(9) PACE] (how would you know he was a constable anyway?).
There is a Code of Practice relating to stop-and-search procedures that the police are required to follow (`Code A'). This code states, for example, that the constable should conduct the search in a way that minimises indignity and, where possible, out of public sight. A search should be no more intrusive than is necessary to find the object sought and, if it involves removal of more than outer garments, must be carried out by a person of the same gender. However, Code A does not have the force of law. Although a court may be persuaded to exclude evidence obtained in flagrant breach of Code A, such a breach does not in itself give rise to a claim for damages.
As far as anti-terrorist measures are concerned, if authorised by a senior police officer, a constable may enter your home without a warrant to search for materials that may be used for terrorism [s37 TA]. This power of search is subject to the same controls as anti-terrorist stop-and-search procedures. In particular, its use must be notified to the Home Secretary, and the authorising officer has to have reasonable grounds that it is necessary to prevent terrorism.
In most other circumstances a search will be unlawful without a warrant, unless you consent to it. A magistrate has a general power to issue a search warrant against your home if he or she reasonably believes that (i) a `serious arrestable offence' has been committed; and (ii) evidence relevant to the investigation of that offence is likely to be found there; and (iii) there is no other way to gain access except with a warrant. There are also technical restrictions that may not be very relevant; for example, the magistrate must have reasonable grounds for believing that material sought is not protected by legal professional privilege.
A `serious arrestable offence' is, in essence, one that results in death or serious injury, rape, kidnapping, or serious financial loss. It follows that a magistrate may not issue a search warrant to search for evidence of minor thefts, for example.
Magistrates also have specific powers to issue search warrants in respect of, for example, offensive weapons [s142 CJA], nuclear weapons (!) [s52 ATCSA], dangerous chemicals [s66 ATCSA], hidden terrorists [s42 TA], firearms or imitation firearms [s46 FA], and controlled drugs [s23 MDA].
In all cases, the magistrate is expected to grant the warrant only if there are reasonable grounds to believe that the sought articles are likely to be found. However, it is not uncommon for the police to ask for, and get, a warrant to search for a broad range of articles, e.g., `electrical items'.
A search warrant is normally valid for one month after issue; it cannot be lawfully executed if this time period has expired.
Lacking such a warrant, the constable will either have to (i) give up, (ii) arrest you (see below), or (iii) invoke one of the small number of provisions which allow him to enter your property to search you. For example, a constable may enter any premises to search you if he has reasonable grounds to believe that you are in possession of a a firearm that you intend to use for criminal purposes, or you are trespassing while in possession of a firearm. Note that `firearm' here includes imitation firearms.
Acting covertly or warily, or attempting to conceal articles from the police, or carrying implements that might be used for burglary in an area where a number of burglaries have already occurred are reasonable grounds to stop and search.
Needless to say, ethnicity, hairstyle, accent, or clothing will never constitute reasonable grounds. However, if it appears that members of certain `gangs' dress in a particular way, or have particular insignia, and if members of those gangs are known habitually to carry offensive weapons, then clothing or insignia may constitute reasonable grounds to search.
A belief that a search might produce reasonable grounds for a search is not in itself reasonable grounds for a search. In other words, a constable must not search you to attempt to find whether there is a reason to search you.
If you are arrested, a constable may search you, your vehicle, or any building in which you are found, for articles related to the offence for which you were arrested. In addition, you yourself can be searched for articles related to any offence, not just the one for which you were arrested. This power can only be lawfully exercised at the time of arrest, not several hours later, and the constable must have reasonable grounds for believing that such articles will be found [s32 PACE].
A constable may search you at the time of arrest for any article that he reasonably believes makes you a danger to yourself or others, or which he believes may assist you to escape from custody [s32 PACE].
If authorised by a senior officer, and if you have been arrested for an `arrestable' offence, a constable may enter your home after the arrest to search for articles connected with the offence, or similar offences. The authorising officer must have reasonable grounds for believing that the search will reveal such articles [s18 PACE]. An `arrestable' offence is one for which the police have a power to arrest without warrant.
If you are brought to a police station in custody, then a constable is required to search you if this is necessary to make a full list of your possessions [s54 PACE].
There are very limited circumstances in which an intimate search -- that is, a search of bodily orifices -- can be authorised. In particular, it can be authorised if a senior police officer believes you are concealing a weapon or a class-A controlled drug. To be lawful, the officer must have reasonable grounds to believe that you are doing so, and that it can't be found without an intimate search. It is unlawful to carry out an intimate search for any item other than those mentioned, or in any place except a police station or medical facility. A search of your mouth is not considered `intimate' and is not subject to these limitations.