Exercising powers of entry, search and seizure

Exercising powers of entry, search and seizure

Linking the NVFFA with the Criminal Procedure Act

The National Veld and Forest Fire Act (NVFFA) has been drafted to be consistent with the provisions in the Criminal Procedure Act (CPA) that relate to entry, search, seizure and arrest.An FPO may not delegate the power to

Who may enforce the Act?

A registered fire protection officer (FPO), a designated forest officer (FO), a police officer, and an officer appointed in terms of section 5 or 6 of the Fire Brigade Services Act have the power to enforce the NVFFA. References to an FPO in sections 27, 28 and 29 of the NVFFA includes all the abovementioned officials. Any of these officers must carry identification to be able to exercise these powers.An FPO may not delegate the power to search and seize.

Powers to enter and search

Section 27 provides that an FPO may enter and search any land or premises without a warrant if he or she has reason to believe that an offence has been or is being committed there, if the delay that would be caused by applying for a warrant would defeat the object of the entry or search. An FPO may, without a warrant, stop, enter and search any vehicle, or stop and search any beast of burden which he or she reasonably suspects is being or has been used in the commission of an offence.

Power to search persons

The NVFFA is silent about the search of persons. FPOs have this power in terms of Section 22 of the CPA which empowers ‘police officers’ as defined to search persons without warrants under certain circumstances.

Power to seize

Section 28(1) states that an FPO may seize without a warrant: any vehicle, tool, weapon, animal or

other thing which he or she has reason to believe has been or is being used in the commission of an offence

any thing which he or she has reason to believe might be used as evidence in the prosecution of any person for an offence

Seizure of vehicles and animals

When any vehicle or animal is seized, the person in control of the vehicle or animal must take it to the place pointed out by the FPO.The vehicle or animal may be kept there pending the outcome of proceedings. Items seized must be kept securely and in good order.

Seizure of vehicles

In the case of a vehicle the FPO must have a valid licence for the vehicle concernedThe FPO may immobilise vehicle by removing a part.The part must be kept safely and returned to vehicle in good order when released.

The CPA on entry, search and seizure without a warrant 1

Section 22 of the Criminal Procedure Act provides for those instances where searches and seizures can occur without a warrant: upon arrest with consent where delay in applying for warrant would defeat

the ends of justice when the officer reasonably believes a warrant

would be issued if he or she had applied for one.

The CPA on entry, search and seizure without a warrant 2

The exercise of powers based upon legal test of ‘reasonableness’.This means the FPO must have reasonable grounds to believe that a particular set of circumstances exist.

The CPA on entry, search and seizure without a warrant 3

Reasonableness of entry and search is based upon whether: the FPO really believes or suspects it

is necessary this belief or suspicion is based on

certain grounds a reasonable person in the same

circumstances would hold the same belief or suspicion.

Entry, search or seizure with a warrant

It is common procedure to ensure lawful practice is to conduct search and seizures with a warrant.Warrants are issued by judicial officials including SA Police Service commissioned officers of the rank of captain and above.Warrants are a safeguard against unreasonable and unjustified infringement of privacy.

Applying for a warrant

Applications for warrants must contain information under oath indicating reasonable grounds to believe: an offence was committed or is about to be

committed articles involved in offence may be evidence such articles are in possession of a certain

person or on certain premises.

The warrant specifies the premises or person(s) to be searched or articles to be seized.

Executing a search warrant 1

The following procedures must be followed when executing a warrant: the search warrant must be executed

by day unless otherwise authorised warrants remain in force until

executed or cancelled by someone with judicial authority to do so.

Executing a search warrant 2

After completing the search or seizure, a copy of the warrant must be handed to the person whose rights have been affected.Specifications of warrants must be followed to the letter.The search or seizure must be conducted in presence of the owner or occupier of premises.

Conduct of an FPO during entry, search and seizure 1

All searches and seizures should be conducted with due regard to human dignity.Body searches should take place in private, if at all possible.

Conduct of FPO during entry, search and seizure 2

Female FPOs should search female suspects.If no female FPOs are available, the FPO can ask any woman from the public to conduct search of female suspect.Intimate searches may only be conducted by medical practitioners.

Use of force during entry, search and seizure 1

To conduct a lawful search, force may be used as is ‘reasonably necessary’ to overcome any resistance.‘Reasonably necessary’ means that force necessary to overcome the threat or resistance, no more no less.

Use of force during entry, search and seizure 2

Prior to the use of force, FPOs must identify themselves, audibly demand entry and give reasons for entering the premises.If reasonable grounds exist to believe evidence will be destroyed, there is no need to audibly demand entry first.Force should only be used when resistance is offered and then only as a last resort.

Constitutional rights of suspected offenders

Entry, search and seizure are considered to be serious infringements of a person’s human rightsThe State or persons cannot search a person’s home, property or body or seize items of property without legal authorisation. As we have seen this can be authorisation in the form of: a warrant or without a warrant in terms of the NVFFA or CPA.

Limitations clause and entry, search and seizure

If a less restrictive method will serve the same purpose, the FPO should use that method.The limitation of a right must be justifiable in an ‘open and democratic society’ based on dignity, equality and freedom.Any infringement on a right must be proportionate to the nature and seriousness of the harm caused by the limitation.

Search scenario 1

Searching land and premises with the permission of person in charge

“Good morning. I am ______ an appointed Fire Protection Officer. Here is my card as proof.I believe that there might be some items on your premises/land which have been/are being used in the commission of an offence.These items are __________May I please enter and search your premises?”

Permission is given and search carried outIf nothing is found thank the person for the time.If something is found, seize the articles, establish the full identity of the person in charge and use an appropriate means to secure person’s appearance in court. (Arrest or notice to appear.)

Search scenario 2

Searching land and premises without permission and without a warrant

Steps 1 – 3 as before.“May I please enter and search your premises?”

Person in control does not give permissionFPO: “I have reason to believe that a search warrant would be granted if I applied for one and the NVFFA allows me to continue.”

Conduct the search If the person resists you may remove him/her with such force as necessary so that you can complete the search.Take appropriate steps once the search is complete as described earlier.

Search scenario 3

How to stop, enter and search any vehicle or stop and search any pack

animal

“Good morning. I am ______ an appointed Fire Protection Officer. Here is my card as proof.Please step out of your vehicle/away from your pack animal as I suspect there might be some items in your vehicle/on your animal which have been/are being used in an offence.”

Person in control gives permission and search is carried outIf something is found seize the articles, establish the full identity of the person in charge and use an appropriate means to secure person’s appearance in court. (Arrest or notice to appear.)

Search scenario 4

How to stop, enter and search any vehicle or stop and search any pack

animal

“Good morning. I am ______ an appointed Forest Officer. Here is my card as proof.Please step out of your vehicle/away from your pack animal as I suspect there might be some items in your vehicle/on your animal which have been/are being used in an offence.”

Person in control does not give permissionFPO: “I have reason to believe that a search warrant would be granted if I applied for one and the NVFFA allows me to continue.”

Conduct the search If the person resists remove him/her with such force as necessary so that you can complete the search.Take appropriate steps once the search is complete as described earlier