search and seizure assignment

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Search & Seizure Supreme Court Cases

The Fourth Amendment to the U.S. Constitution protects individuals from unreasonable searches and seizures. Generally, evidence found through an unlawful search cannot be used in a criminal proceeding. Behind this principle is the idea that the government cannot invade areas where a person has a reasonable expectation of privacy without a substantial justification. Most searches of private property must be supported by a warrant, which must be based on probable cause and must describe the place to be searched and the people or items to be seized. However, a warrant is not needed in certain situations, such as:

• Searches incident to a lawful arrest
• Consent to a search by a person with the authority to consent
• Emergencies to which officers must respond
• “Hot pursuit” of a fleeing felon
• Imminent destruction of evidence
• Vehicle searches, when the officer has probable cause to believe that the vehicle contains contraband
• When the evidence is in plain view, or is in “open fields” or other areas where a person does not have a reasonable expectation of privacy

Like a search, an arrest usually must be supported by a warrant based on probable cause. Again, there are some exceptions, such as when an officer witnesses a person committing a crime or has probable cause to believe that a suspect whom they encounter in a public place has committed a felony. Police are entitled to use reasonable force in arresting a suspect, but they cannot use excessive force and may use deadly force only in limited circumstances.

Law enforcement officers may conduct cursory stops and searches, known as “stop and frisks,” without a warrant. These involve a pat down of outer clothing for weapons when an officer reasonably suspects that a person may be armed and dangerous.

Below is a selection of Supreme Court cases involving searches and seizures, arranged from newest to oldest.

Author: John Roberts

The application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.

Author: Clarence Thomas

When an officer lacks information negating an inference that a vehicle is driven by its owner, an investigative traffic stop made after running a vehicle's license plate and learning that the registered owner's driver's license has been revoked is reasonable.

Author: Sonia Sotomayor

The automobile exception does not permit the warrantless entry of a home or its curtilage to search a vehicle therein.

The government's acquisition of an individual's cell-site records was a Fourth Amendment search.

The discovery of a valid, pre-existing, and untainted arrest warrant attenuated the connection between the unconstitutional investigatory stop and the evidence seized incident to a lawful arrest.

Author: Ruth Bader Ginsburg

Without reasonable suspicion, police extension of a traffic stop to conduct a dog sniff violates the Constitution's shield against unreasonable seizures.

Author: Samuel A. Alito, Jr.

The holding in Randolph is limited to situations in which the objecting occupant is physically present.

When an officer's mistake of law was reasonable, there was a reasonable suspicion justifying a stop under the Fourth Amendment.

Without a warrant, the police generally may not search digital information on a cell phone seized from an individual who has been arrested.

Author: Antonin Scalia

Using a drug-sniffing dog on a homeowner's porch to investigate the contents of the home is a search within the meaning of the Fourth Amendment.

Author: Anthony Kennedy

When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

The government's attachment of a GPS device to a vehicle, and its use of that device to monitor the vehicle's movements, constitutes a search under the Fourth Amendment.

Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.

The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.

In a traffic stop setting, the first Terry condition (a lawful investigatory stop) is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have cause to believe that any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

Author: John Paul Stevens

Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

Author: David Souter

The required knowledge component of reasonable suspicion for a school administrator's evidence search is that it raise a moderate chance of finding evidence of wrongdoing.

When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.

When police make a traffic stop, a passenger in the car (not only the driver) is seized for Fourth Amendment purposes and thus may challenge the stop's constitutionality.

When opposing parties tell two different stories, one of which is blatantly contradicted by the record so that no reasonable jury could believe it, a court should not adopt that version of the facts for the purposes of ruling on a motion for summary judgment. Also, a police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.

A physically present co-occupant's stated refusal to permit entry to a residence rendered a warrantless entry and search unreasonable and invalid as to them.

Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.

A dog sniff conducted during a lawful traffic stop that reveals no information other than the location of a substance that no individual has a right to possess does not violate the Fourth Amendment.

Author: Stephen Breyer

A highway checkpoint where police stopped motorists to ask for information about a recent accident was reasonable under the Fourth Amendment.

When a warrant did not describe the items to be seized, the fact that the application for the warrant adequately described the items did not save the warrant.

Terry principles permit a state to require a suspect to disclose their name in the course of a Terry stop.

Author: William Rehnquist

Belton governs even when an officer does not make contact until the person arrested has left the vehicle.

A 15-to-20-second wait before forcible entry satisfied the Fourth Amendment.

To determine whether an officer had probable cause to make an arrest, a court must examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.

The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches.

Police officers acted reasonably when, with probable cause to believe that a man had hidden marijuana in his home, they prevented that man from entering the home for about two hours while they obtained a search warrant.

A state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure.

The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine.

When the government uses a device that is not in general public use to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment search, and it is presumptively unreasonable without a warrant.

Author: Sandra Day O’Connor

A vehicle checkpoint violates the Fourth Amendment when its primary purpose is indistinguishable from the general interest in crime control.

An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person.

A border patrol agent's physical manipulation of a bus passenger's carry-on bag violated the Fourth Amendment proscription against unreasonable searches.

An individual's presence in a "high crime area", standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity. However, a location's characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation.

Police officers with probable cause to search a car may inspect passengers' belongings found in the car that are capable of concealing the object of the search.

While the authority to conduct a full field search as incident to an arrest was established as a bright line rule under Robinson , that rule should not be extended to a situation in which the concern for officer safety is not present to the same extent, and the concern for destruction or loss of evidence is not present at all.

A no-knock entry is justified when the police have a reasonable suspicion that knocking and announcing their presence would be dangerous or futile under the circumstances, or that it would inhibit the effective investigation of the crime.

An officer making a traffic stop may order passengers to get out of the car pending completion of the stop.

The temporary detention of a motorist on probable cause to believe that they have violated the traffic laws does not violate the Fourth Amendment prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist without an additional law enforcement objective.

The Fourth Amendment does not require that a lawfully seized defendant be advised that they are free to go before their consent to search will be recognized as voluntary.

The exclusionary rule does not require the suppression of evidence seized in violation of the Fourth Amendment when the erroneous information resulted from clerical errors of court employees.

The common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry.

Author: Byron White

The police may seize non-threatening contraband detected through the sense of touch during a protective patdown search of the sort permitted by Terry , so long as the search stays within the bounds marked by Terry .

There is no per se rule that every encounter on a bus is a seizure. The appropriate test is whether, taking into account all the circumstances surrounding the encounter, a reasonable passenger would feel free to decline the officers' requests or otherwise terminate the encounter.

Author: Harry Blackmun

In a search extending only to a container within a vehicle, the police may search the container without a warrant when they have probable cause to believe that it holds contraband or evidence.

To constitute a seizure of the person, just as to constitute an arrest, there must be either the application of physical force, however slight, or submission to an officer's show of authority to restrain the subject's liberty.

A criminal suspect's Fourth Amendment right to be free from unreasonable searches is not violated when they give police permission to search their car, and the police open a closed container in the car that might reasonably hold the object of the search.

When the police have probable cause to arrest a suspect, the exclusionary rule does not bar the use of a statement made by the defendant outside their home, even if the statement is taken after an arrest made in the home in violation of Payton .

Factors for determining whether an informant's tip establishes probable cause are also relevant in the Terry reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard.

The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer has a reasonable belief based on specific and articulable facts that the area to be swept harbors a person posing a danger to those on the arrest scene.

The use of highway sobriety checkpoints does not violate the Fourth Amendment.

The Fourth Amendment does not require the police traveling in the public airways at an altitude of 400 feet to obtain a warrant to observe what is visible to the naked eye.

The Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home.

The Fourth Amendment does not require the suppression of evidence initially discovered during police officers' illegal entry of private premises if the evidence is also discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry.

The Fourth Amendment exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance on a statute authorizing warrantless administrative searches, which is subsequently found to violate the Fourth Amendment.

A truly cursory inspection, which involves merely looking at what is already exposed to view without disturbing it, is not a search for Fourth Amendment purposes and therefore does not even require reasonable suspicion.

Reasonable police regulations related to inventory procedures, administered in good faith, satisfy the Fourth Amendment.

Author: Warren Burger

The Fourth Amendment did not prohibit the Environmental Protection Agency from taking, without a warrant, aerial photographs of the defendant's plant complex from an aircraft lawfully in public navigable airspace.

A police officer may not seize an unarmed, non-dangerous suspect by shooting them dead. However, when an officer has probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

The Fourth Amendment prohibition on unreasonable searches and seizures applies to searches conducted by public school officials, but the more lenient standard of reasonable suspicion applies.

The two justifications for the vehicle exception to the warrant requirement of the Fourth Amendment come into play when a vehicle is being used on the highways or is capable of such use and is found stationary in a place not regularly used for residential purposes. The vehicle is readily mobile, and there is a reduced expectation of privacy stemming from the pervasive regulation of vehicles capable of traveling on highways.

Author: William Brennan

The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure to obtain evidence for fairly determining guilt or innocence.

Author: Per Curiam

Even when no single piece of evidence in an affidavit was conclusive, the pieces fit neatly together and thus supported the magistrate's determination of probable cause.

Author: Lewis Powell

The government's intrusion upon open fields is not one of the unreasonable searches proscribed by the Fourth Amendment. No expectation of privacy legitimately attaches to open fields.

The Fourth Amendment exclusionary rule should not be applied to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid.

Securing a dwelling on the basis of probable cause to prevent the destruction or removal of evidence while a search warrant is being sought is not an unreasonable seizure of the dwelling or its contents.

The investigative procedure of subjecting luggage to a sniff test by a well-trained narcotics detection dog does not constitute a search within the meaning of the Fourth Amendment.

If a state court decision indicates clearly and expressly that it is based on bona fide separate, adequate, and independent state grounds, the Supreme Court will not review the decision. Also, a search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts that, taken together with the rational inferences from those facts, reasonably warrant the officer to believe that the suspect is dangerous and that the suspect may gain immediate control of weapons.

The rigid two-pronged test under Aguilar and Spinelli for determining whether an informant's tip establishes probable cause for issuance of a warrant is abandoned, and the totality of the circumstances approach that traditionally has informed probable cause determinations is substituted in its place.

Consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station incident to booking and jailing the suspect.

Police officers who have legitimately stopped a vehicle and who have probable cause to believe that contraband is concealed somewhere in it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant.

Author: Thurgood Marshall

An arrest warrant, as opposed to a search warrant, is inadequate to protect the Fourth Amendment interests of persons not named in the warrant when their home is searched without their consent and in the absence of exigent circumstances.

Author: Potter Stewart

When a policeman has made a lawful custodial arrest of the occupant of an automobile, they may search the passenger compartment of that automobile as a contemporaneous incident of that arrest. The police may also examine the contents of any containers found within the passenger compartment.

In determining what cause is sufficient to authorize police to stop a person, the totality of the circumstances (the whole picture) must be taken into account. Based upon that whole picture, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.

The Fourth Amendment prohibits the police from making a warrantless and non-consensual entry into the home of a suspect to make a routine felony arrest.

When the arrest followed quickly after the search of the defendant's person, it is not important that the search preceded the arrest, rather than vice versa.

In the absence of exigent circumstances, police are required to obtain a warrant before searching luggage taken from an automobile properly stopped and searched for contraband.

The exclusionary rule does not require that all evidence obtained in violation of regulations concerning electronic eavesdropping be excluded.

When a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

When the state does not seek to seize persons but instead seeks to seize things, there is no apparent basis in the language of the Fourth Amendment for also imposing the requirements for a valid arrest: probable cause to believe that a third party occupying the place to be searched is implicated in the crime. In other words, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found.

The exclusionary rule should be invoked with much greater reluctance when the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object.

A person aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of their Fourth Amendment rights infringed.

Although the Fifth Amendment may protect an individual from complying with a subpoena for the production of their personal records in their possession, a seizure of the same materials by law enforcement officers is different because the individual against whom the search is directed is not required to aid in the discovery, production, or authentication of incriminating evidence.

The cases construing the Fourth Amendment reflect the common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in their presence, as well as for a felony not committed in their presence if there was reasonable ground for making the arrest.

The Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following an arrest.

Once an accused has been lawfully arrested and is in custody, the effects in their possession at the place of detention that were subject to search at the time and place of the arrest may lawfully be searched and seized without a warrant even after a substantial time lapse between the arrest and later administrative processing, on the one hand, and the taking of the property for use as evidence, on the other.

When the subject of a search is not in custody, and the state would justify a search on the basis of their consent, the state must demonstrate that the consent was voluntary. Voluntariness is determined from the totality of the surrounding circumstances. While knowledge of a right to refuse consent is a factor to be taken into account, the state need not prove that the person knew that they had a right to withhold consent.

In the case of a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment but also a reasonable search under the Fourth Amendment.

Only in a few specifically established and well delineated situations may a warrantless search of a dwelling withstand constitutional scrutiny. These include when there was consent to the search, the officers were responding to an emergency, the officers were in hot pursuit of a fleeing felon, or the goods ultimately seized were in the process of destruction or were about to be removed from the jurisdiction.

An arresting officer may search the arrestee's person to discover and remove weapons and to seize evidence to prevent its concealment or destruction, and they may search the area within the immediate control of the person arrested, meaning the area from which the person might gain possession of a weapon or destructible evidence.

Author: John Marshall Harlan II

A tip was inadequate to provide the basis for a finding of probable cause that a crime was being committed when it did not set forth any reason to support the conclusion that the informant was reliable and did not sufficiently state the underlying circumstances from which the informant drew their conclusions or sufficiently detail the defendant's activities.

Author: Earl Warren

When a police officer observes unusual conduct that leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, when he identifies himself as a policeman and makes reasonable inquiries in the course of investigating this behavior, and when nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, the officer is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons that might be used to assault him.

The exigencies of a situation in which officers were in pursuit of a suspected armed felon in the house that he had entered only minutes before they arrived permitted their warrantless entry and search. Moreover, the distinction prohibiting seizure of items of only evidential value and allowing seizure of instrumentalities, fruits, or contraband is not required by the Fourth Amendment.

A state court does not have a duty to require the disclosure of an informer's identity at a pretrial hearing held for the purpose of determining only the question of probable cause when there was ample evidence in an open and adversary proceeding that the informer was known to the officers to be reliable and that they made the arrest in good faith upon the information that the informer supplied.

The government's activities in electronically listening to and recording the defendant's words violated the privacy on which he justifiably relied while using a telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment.

The interests in human dignity and privacy that the Fourth Amendment protects forbid any intrusions beyond the body's surface on the mere chance that desired evidence might be obtained. There must be a clear indication that such evidence will be found.

Author: Arthur Goldberg

Although an affidavit supporting a search warrant may be based on hearsay information, the magistrate must be informed of some of the underlying circumstances on which the person providing the information relied and some of the underlying circumstances from which the affiant concluded that the undisclosed informant was creditable or their information reliable.

Statements made by a suspect in his bedroom at the time of his unlawful arrest were the fruit of the agents' unlawful action and should have been excluded. The narcotics taken from a third party as a result of statements made by the suspect at the time of his arrest were likewise fruits of the unlawful arrest and should not have been admitted. However, when another suspect had been lawfully arraigned and released on his own recognizance after his unlawful arrest and had returned voluntarily several days later when he made an unsigned statement, the connection between his unlawful arrest and the making of that statement was so attenuated that the unsigned statement was not the fruit of the unlawful arrest and was properly admitted.

Author: Tom C. Clark

All evidence obtained by searches and seizures in violation of the federal Constitution is inadmissible in a criminal trial in a state court.

Author: Charles Evans Whittaker

Even if the information received by an agent from an informer was hearsay, the agent was legally entitled to consider it in determining whether he had probable cause under the Fourth Amendment and reasonable grounds to believe that the defendant had committed or was committing a violation of the narcotics laws.

Author: Felix Frankfurter

In a prosecution in a state court for a state crime, the Fourteenth Amendment does not forbid the admission of relevant evidence, even though obtained by an unreasonable search and seizure.

Author: William Howard Taft

Wiretapping was not a search or seizure within the meaning of the Fourth Amendment. (This case was overruled by Katz v. U.S. in 1967.)

The Fourth Amendment recognizes a necessary difference between a search for contraband in a store, dwelling, or other structure for the search of which a warrant may readily be obtained, and a search of a ship, wagon, automobile, or other vehicle that may be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

Author: William Rufus Day

The government may retain for use as evidence in the criminal prosecution of their owner incriminating documents that are turned over to it by private individuals who procured them through a wrongful search without the participation or knowledge of any government official.

Author: John Hessin Clarke

Search warrants may not be used as a means of gaining access to a person's house or office and papers solely for the purpose of making search to secure evidence to be used against them in a criminal or penal proceeding.

The tendency of those executing federal criminal laws to obtain convictions by means of unlawful seizures and enforced confessions in violation of federal rights is not to be sanctioned by the courts that are charged with the support of constitutional rights.

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• Criminal Law

Search, Seizure and Production of Materials Under Criminal Law

This Article is written by Shruti Singh , 2nd-year Law intern from Hidayatullah National Law University, Raipur pursuing B.A.LLB (Hons.) Course. This article covers the provisions dealing with search, seizure and production of materials.

Table of Contents

Introduction

If human rights are not embodied in the constitution and the law, or even if guarantees are not respected, no citizen would be safe, against tyranny and authoritarianism of the governmental actions. The principles of criminal justice also envisage the safeguards to person and personal liberty. Before the commencement of the Indian Constitution the administration of criminal justice was fully governed by the provisions of the Criminal Procedure Code,1973 and the Evidence Act, 1872. These are mainly concerned with the security of the state and public peace and not with individual liberty.

A police officer or any other authorised person carrying out a procedure such as search or seizure is supposed to know the rules and acts relating to it to work effectively and efficiently. These functions requires specialized knowledge of skill and procedure. Sometimes the officer might make mistakes while applying the rules and acts relating to search, seizure and production of materials which becomes fatal for the department’s case when it comes to judicial scrutiny.

Object of the topic

The objective of this topic is to cover all sections concerning search, seizure and production of materials. It highlights the various provisions which deals with evidence and its application under CrPC. It also discusses about the circumstances under which search warrant can be issued, its analysis, seizure and power to impound. It largely extends to comprehending the sections under the Criminal Code which provide for the procedures that are important to be complied with to make it legal. These are just the general provisions related to search and seizure, which needs to be necessarily followed in addition to specific orders or Acts provided.

Procurement of evidence from and for foreign investigating agencies

The term “Evidence” has been defined in Section 3 of the Indian Evidence Act, 1872 which includes in itself all the instruments by which relevant facts can be brought before the Court. Section 2 (h) CrPC has defined investigation as “Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf” This involves all the proceedings for the collection of evidence by the police officers.

Section 166 A of CrPC provides that if in the course of investigation, the application made by the investigating officers of any superior rank on any evidence may be available in a place outside India, so in that case, any Criminal Court may issue a letter of request to a court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or authenticated copies thereof or the thing so collected to the Court issuing such letter. It also says that the letter of request shall be transmitted as the Central Government may specify. The evidence includes every document or thing collected under sub-section (1).

Order or summons to produce a document or other things

Section 91 of CrPC provides for when can the summons/orders be issued to produce documents or other things. A court issues a summons and an officer in charge of a police station issues a written order. It is issued whenever any court or an officer in charge of a police station considers that the production of any document or other thing is essential or desirable for the purposes of investigation inquiry, trial or other proceedings under this code, such court or officer may issue a summons or order to the person in whose possession or power such document or thing is believed to be in possession. It requires him to attend and produce it at such time and place as stated in the summons or orders. Sub-section (2) of Section 91 provides that the person who is required to produce a document or thing under this section shall be deemed to have complied with all the requirements if he causes such things to be produced instead of physically attending it personally to produce the same. Sub-section (3) states that this section will not affect Section 123 (Evidence as to the affairs of state) and Section 124 (official communications) of the Indian Evidence Act, 1872 or the Bankers’ Books Evidence Act, 1891. It specifically does not apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority. A person who appears in court, in regards to a summons under this section, does not become a witness and cannot be examined thereafter. This can be referred from the case Parmeshwari Devi vs. State and Anr(1976) .

Search warrants

As per the law dictionary and as observed in different judicial decisions, the term ‘search’, in the simplest language, denotes an action of a government machinery to go, look through or examine carefully a place, area, person, object etc. in order to find anything concealed or for the purpose of discovering evidence of a crime. The search of a person or vehicle or premises etc., can only be carried out under proper and valid authority of law. It is also well established that search should have a nexus with the crime, it cannot be a random search. 

A search warrant is a written order which is issued by a Judge/ Magistrate or a Court to a police officer or any other person authorizing them to conduct a search of a person, location or vehicle for evidence of a crime and confiscate illegal evidence of a crime. The court in Kalinga Tubes Ltd. v. D. Suri and in many other cases has cautioned the police officer to use search warrant with a little precaution and care and do not abuse their power.

Section 165 of CrPC provides for the circumstances and the way in which search is carried out by a Police Officer. A police officer while making an investigation should have reasonable grounds for believing that something very necessary for the purpose of investigation into an offense which he is authorized to investigate may be found in any place within the local limits of the police station in which he is in charge. He is also required to make a record in writing specifying his grounds of belief and why the search was conducted within the limits of such station.

When the search warrant is issued?

In the following circumstances and conditions a search warrant is issued by a court:

• Where a court has reason to believe that a person to whom summons or orders under Section 91 and a requisition under Section 92(1)  is addressed will not produce the things or documents as required.[ Section 93(1)(a) ]
• Where the thing or document in question is not known to the court to be in the possession of any person. [Section 93(1)(b)]
• Where the court considers that the purposes of any inquiry,trial or other proceedings will be served by general search or inspection. 

In the following circumstances and conditions search warrant is issued by the Magistrate:

• If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class gets any information and after inquiry of the same, thinks it necessary or has reason to believe that a place is being used for the deposit or sale of stolen property or for the deposit, sale or production of any objectionable article or any such objectionable article which is deposited in any place, he may authorize any police officer by way of a search warrant to enter, search or take in possession any property to which this section applies.( Section 94 )
• When any newspaper, book or document, wherever printed, contains any matter, the publication of which is punishable under section 124-A , 153-A , 153-B , 292 , 293 or 295-A of Indian Penal Code, 1860, the State Government may, by notification stating the reasons for such action, declare every copy of such newspaper, book, or document, to be forfeited to the government. After such action, any Magistrate may, by a warrant, authorize any police officer not below the rank of a Sub-Inspector to enter upon and search for such copies in any premises where there is a sufficient reason for suspicion. ( Section 95 )
• If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has sufficient reason to believe that he can issue a search warrant to a person against a person who is kept under confinement for an offense, then he can direct the person to whom he issued a search warrant to search for the person so confined. Such a search will be made in accordance therewith,  and if found, the person shall be immediately taken before a Magistrate who will make such order as appears to be proper. ( Section 97 ).
• Power to compel restoration of abducted females – A Magistrate may upon a complaint made on oath of the abduction or unlawful detention of a woman, or of a female child under 18 years of age, for any unlawful purpose, make an order for the instant restoration of such woman to her liberty. It is also issued to such female child to her husband, parent, guardian, or other person having lawful charge of such child and can compel compliance with such order necessary by using sufficient force ( Section 98 ).

Search of a place suspected

Section 94 of CrPC provides for the search of a place that is suspected to contain stolen property, forged documents etc. It states that a District Magistrate, Sub-divisional Magistrate or Magistrate of first-class may issue warrant to a police officer above the rank of a constable authorizing him to enter, search, take possession of any property, convey any article or to take into custody upon information and inquiry as the Magistrate thinks necessary or has reason to believe that any place is used for deposit or sale of stolen property, or for the deposit or sale of stolen property or for the deposit, sale or production of any objectionable article to which this section applies. The objectionable articles as mentioned in this subsection (2) are counterfeit coin, pieces of metal made in contravention of Metal Tokens Act,1889, counterfeit currency or stamps, forged documents, false seals, obscene seals or objects referred to in Section 292 of IPC, 1860 and instruments or materials used for the production of any of the article mentioned above.

Search for persons wrongfully confined

There is a provision under Section 97 of the Code of Criminal Procedure, 1973 which provides for direction in case of search of persons wrongfully confined. It states that a District Magistrate, Sub-divisional Magistrate or Magistrate of first-class has enough reason to believe that a person who is confined under such circumstances that the confinement amounts to an offense, he may issue a search warrant, and the person to whom such a search warrant is issued may be directed to search the person so confined. And such search shall be made in accordance therewith, and the person on being found shall be instantly taken before a Magistrate and he shall make such order as in the circumstances of the case seems proper.

Power to compel restoration of abducted females

Section 98 states that where a woman or a female child under 18 years of age has been abducted or unlawfully detained for an unlawful purpose, the Magistrate may restore the woman to her liberty or the female child to her proper custody. A sufficient amount of force is allowed for compliance with this section.

Power to declare a publication forfeited

The power to declare certain publications forfeited and to issue search warrants for the same is mentioned under Section 95. It provides that where any newspaper, book or any document wherever printed contains any matter, the publication of which is punishable under section 124-A, 153-A, 153-B, 292, 293 or 295-A of Indian Penal Code, 1860, the State Government may, by notification stating the reasons for such action, declare every copy of such newspaper, book, or document, to be forfeited to the government. After such action, any Magistrate may, by a warrant, authorize any police officer not below the rank of a Sub-Inspector to enter upon and search for such copies in any premises where there is a sufficient reason for suspicion. The meaning of the newspaper, book, and document is contained in its explanation clause.

Constitutional validity of search warrants

The entire procedure specified in the Code of criminal procedure, 1973 is based on the principle of justice and fairness. One of the basic principles of legal jurisprudence is that a person accused of any offence should be given an equal chance to be heard and to defend himself. It is compatible with this theory only that there are provisions in Code of Criminal Procedure, 1973 (CrPC) related to the issue of process, provisions in section 161(3), provision in section 162 of the code that any statement recorded during the course of investigation, shall not be signed by the person making the statement, has been specified.

Similarly, upholding a similar proposition, the protection against self-incrimination has been provided as a special fundamental right, under Part III [Under Article 20(3)] of the Constitution of India. It provides that no person who is accused of an offence can be compelled to be a witness against himself.

In several cases, the constitutional validity of search warrant has been questioned. For instance, in the case of V. S. Kuttan Pillai v. Ramakrishnan, wherein it was opined by the court that a search of the premises occupied by the accused does not amount to compulsion on him to give evidence against himself and hence was not violative of Article 20(3) of the Constitution of India.

Search of a place without warrant

Section 165 prescribes procedure undertaken by a police officer to search a place without a warrant. It states that whenever an officer in charge of a police station or any police officer making an investigation has reasonable grounds to believe that in the process of investigation, there are some things necessary for an offence, which he is authorised to investigate within the local limits of his police station without unnecessary delay, can search even without a search warrant. He is also required to specify the reason for such a search, cause of search, etc. Section 165(3) provides that where a police officer is unable to conduct the search in person, and there is no other person competent to carry out the search at the time, then he may after recording in writing his reasons for so doing, require any officer subordinate to him to make the search. The senior authorizing for the same has to give the subordinate officer an order in writing, specifying the place of search, the reason for which the search is made and subsequent to this the subordinate may thereupon search for such thing in such place. The copies made by the police officer undertaking search shall be sent to the nearest Magistrate empowered to take cognizance of the offense. On the application of the owner or occupier of the place searched shall be furnished, free of cost with a copy of the same by the Magistrate.

Search by a police officer during the investigation

The procedure adopted by a police officer during the search in an investigation is provided in Section 165. Section 165(1) provides that whenever an officer in charge of a police station or a police officer making an investigation in a particular matter has reasonable grounds for believing that anything necessary for the investigation into any offense on which he is authorized to investigate may be found in any place within his local limits and that thing according to him be otherwise obtained without unnecessary delay. Such officer may record the grounds of his belief in writing and prescribing in such writing the thing for which the search is made, or cause a search to be made with the local limits of his station. Section 165(2) authorize the police officer to conduct the search in person. Section 165(3) states that if he is unable to conduct the search in person, he may after recording in writing the reason for so doing authorize a person subordinate to him to conduct search. Section 165(4) says that all the general conditions regarding the search warrant will be applied to this section as contained in Section 100. Section 165(5) provides that copies of the record made in sub-section (1) and (2)  should be sent to the Magistrate who is empowered to take cognizance of the offence. The owner or occupier of the premises can also, on the application, be provided with a copy of the same that is present with the Magistrate, without any cost.

Search In the presence of magistrates

Section 103 of CrPC states that the Magistrate may direct search in his presence. It provides that any magistrate may order a search to be made in his presence of any place in which he is legally competent to issue a search warrant.

Search in the limits of another police station

Section 166 provides the conditions under which the search is conducted in the limits of another police station. Sub-section(1) states that an officer in charge of a police station or a police officer not below the rank of sub-inspector making an investigation may if he requires an officer of another police station whether in the same or different district to cause a search to be made in any place within the limits of the former officer’s jurisdiction. Sub-section(2) the officer shall now carry out the search according to the provisions of Section 165 and forward the thing found on such search to the police officer at whose request the search is made. Sub-section (3) permits an investigating officer who belongs to one police station to search any place that belongs to the limits of another’s police station in certain emergency situations. The one that has been expressly mentioned is when there is a possibility of delay in requisitioning the services of police personnel of another police station and if such delay can destroy the very purpose of the search. Sub-section (4) says that the officer in charge of conducting the search has to send a notice of search to the officer within whose local jurisdiction such place is situated and shall also send a copy of the notice to the nearest Magistrate. Sub-section (5) says that on the application of the owner of the premises of the place searched, he shall be provided a free copy of the said notice that was sent to the Magistrate.

Search for false weights and measures

Section 153 provides for the inspection of weights and measures. This section authorizes a police officer in charge of a police station to enter any place within the limits of such station for the purpose of inspecting or searching for any weights or measures or instruments for weighing, used or kept there without a warrant. The police officer must have a valid reason to believe that there are presence of false weights, measures or instruments in that place. It also provides that if he finds such weights, measures or instruments to be false, he has the option of seizing them or give information of such seizure to the Magistrate within the jurisdiction.

Analysis of the general provision of search

Section 99 , Section 100 and Section 101 contains the general provisions which are necessary while carrying out the process of search. Section 100 primarily provides for the provision relating to searches. This section provides the right of free ingress in the case of closed premises on demand and on the production of the search warrant by the police officer. It also ensures that searches are conducted fairly and squarely. 

Sub-section (1) provides that whenever any place which is liable to search of inspection is closed, any person who is residing in, or being in charge of on-demand of the officer or other person executing the warrant may allow him to free ingress(enter upon) into and afford all reasonable facilities for a search therein.

Sub-section (2) provides that if ingress to such place can’t be obtained, then the officer may proceed in the manner provided in Section 47(2) which provides for breaking a door or window. 

Sub-section (3) provides that where a person is suspected of concealing about his person any article for which the search should be made can be searched. Where the search is made of a female then it will be carried out by another female with strict regard to decency.

Sub-section (4) mandates that the police officer is required to call two or more independent and respectable inhabitants of the locality in which the place to be searched is situated. If he cannot find any such person or no such inhabitant of the locality is available then a person from the other locality available or is willing can also be called upon to be a witness to such search.

Sub-section (5) requires a police officer to keep a record in writing the things seized on the search and of the places in which they are respectively found, in the presence of the witnesses. The witnesses who are present at the time of search under this section are not required to attend the court as a witness of the search unless specially summoned by it.

Sub-section (6) states that the occupier whose place is searched or any other person on his behalf has every right to attend the search and also be delivered a copy of the list prepared during the search which is duly signed by the witnesses.

Sub-section (7) provides that the person who is searched under sub-section (3) shall be entitled to get the copy that contains the list of all things taken in possession of at the time of the search.

Sub-section (8) states that a person who without reasonable cause refuses or neglects to attend and witness a search when called upon to do so by an order in writing delivered or tendered to him shall be deemed to have committed an offence under Section 187 of the Indian Penal Code. 

Section 101 prescribes for disposal of things found in search beyond the jurisdiction of the court. When in the execution of a search warrant at any place beyond the jurisdiction of the court which issued the warrant, the things found in such search shall immediately be taken before the court issuing the warrant, unless such place is nearer to the Magistrate having jurisdiction than to such court, in which case the list and things and shall be taken to the Magistrate unless there is a good cause to the contrary, such Magistrate shall make an order authorizing them to be taken to such court.

Consequences of non-compliance with the provisions relating to searches

There are different sections in the Code which prescribes for the effects when the provisions relating to searches are not complied with.

Section 460 of CrPC prescribes that if a search warrant is issued under Section 94 by a Magistrate who is not empowered by law to issue such warrant will not vitiate(destroy or impair) the proceedings. A search warrant for the search of a place that is suspected to contain stolen property, forged documents, etc can only be issued by a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class. But, if a situation arises that the warrant is issued by a person other than a Magistrate though erroneously, but in good faith, then the warrant will not become ineffective just because the Magistrate was not empowered to issue such a warrant.

Section 461 also provides for irregularities which can vitiate the proceedings. It says that under Section 93(3) only a District Magistrate or a Chief Judicial Magistrate can issue a warrant for a document, parcel or another thing in the custody of postal or telegraph authority. According to Section 461 if a Magistrate who is not empowered by law to issue such a warrant, issues the same, will make the warrant ineffective.

A Magistrate, not empowered by law, issues a search warrant in case of wrongful confinement under Section 97, then the warrant will become illegal and any entry into such place subsequent to such illegal warrant shall be considered to be without legal authority.

Magistrates not empowered to issue a search warrant

Section 460 states the circumstances in which a search warrant is not vitiated even when it is issued by a Magistrate who has no authority to do so. A search warrant for the search of a place that is suspected to contain stolen property, forged documents, etc can only be issued by a District Magistrate, Sub-divisional Magistrate or a Magistrate of the first class. But, if a situation arises that the warrant is issued by a person other than a Magistrate though erroneously, but in good faith, then the warrant will not become ineffective just because the Magistrate was not empowered to issue such a warrant.

Section 461 of CrPC clearly provides for conditions in which a search warrant will be illegal when a Magistrate who is not empowered issues a warrant. It says that under Section 93(3) only a District Magistrate or a Chief Judicial Magistrate can issue a warrant for a document, parcel or another thing in the custody of postal or telegraph authority. According to Section 461 if a Magistrate who is not empowered by law to issue such a warrant, issues the same, will make the warrant ineffective.

Search without warrant by police officers not authorized

It has been comprehended from various sections like Section 153, 165 and 166, that a place can be searched by a police officer of a certain rank or any other person authorized by law without a warrant. A search by any other police officer or any other person would be illegal and the sentry into such place will also be unlawful. Even a search by a police officer outside the limits of his police station and in the situations where he is not authorized to do so would be without legal authority and illegal. [ Section 166 (3)]. Section 165 of the CrPC provides for an exception to this, which states that where there is reasonable ground for if the search is not conducted immediately, then the valuable evidence and facts will be destroyed then in such cases, he may straight away search, after sending advance intimation to the court. It has been comprehended from various sections like Section 153, 165 and 166, that a place can be searched by a police officer of a certain rank or any other person authorized by law without a warrant. A search by any other police officer or any other person would be illegal and the sentry into such place will also be unlawful. Even a search by a police officer outside the limits of his police station and in the situations where he is not authorized to do so would be without legal authority and illegal [Section 166(3)]. Section 165 of the CrPC provides for an exception to this, which states that where there is reasonable ground for if the search is not conducted immediately, then the valuable evidence and facts will be destroyed then in such cases, he may straight away conduct the search, after sending advance intimation to the court.

Effect of contravention of the search procedure

Section 100 of CrPC provides general procedures that need to be necessarily followed at the time of the search. Besides this, Section 165 and Section 166 also provides for additional procedures to be followed, when the search is made by a police officer without a warrant. Contravention of these articles would make the search illegal or irregular. Whether the contravention would vitiate the proceedings or not is provided in Section 460 and Section 461, discussed above.

Search with the consent of the occupant

If the entry into the place of search is with the consent of the occupant of such place, then the search and recovery will not be affected on the ground that the search procedure mentioned under Section 100 and Section 165 was not followed. In addition to this, where it is proved that the articles were produced by the accused himself, Section 165 of CrPC does not apply.

The act of seizing is well known as a seizure. It is an action coupled with force in which an object or person is suddenly taken over, grabbed, removed, or overwhelmed.

Search and seizure is also an essential stage in the process of effective investigation. There are two methods in which police can affect search and seizure. One under a warrant which is issued under any of the provisions of Sections 93, 94, 95, and 97 and the other is without a warrant under any of the provisions of Sections 103, 165 and 166 of CrPC.the basic provisions as to search and seizure are laid down in Section 100 of CrPC. The procedure set out in the section is generally followed in offenses committed under the Indian Penal Code as well as in special and local laws with a little variance. Thus, in all situations of search and seizure, the investigating police should follow the procedures laid down under Sections 100 and 165 CrPC. Section 102 provides the power of police officers to seize certain property.

The police may have to effect search and seizure in one or more places. One at the scene of the crime and the other at places where the persons involved in crime are hiding and places where the incriminating articles to crime are kept or concealed. 

As soon as a crime is committed at a place, the police officer arrives at the scene of the crime and as a golden rule he should not alter with the position of the crime scene, pick up or even touch anything without being properly described in an official note and photographed. 

It is his duty to ensure that there is no interference with the crime scene. He shall also not allow an unauthorized person to meddle in the inspection of the scene. He has to make sure that there is not much crowd at the place of the scene as there may be a possibility of distortion of evidence or clues. He should inquire about the person who came first to the place. He should not leave the process of investigation solely on his subordinates, especially those who are untrained. These are some of the precautions that a police officer has to take care of while carrying out the process of search and investigation. Like the above procedures, many are established in the Code of Criminal Procedure which is discussed later in this article.

For the purpose of any investigation, inquiry or trial, the production of things and documents is necessary, in respect of which search and seizure of property are affected. It is a general rule that the freedom and liberty of private citizens should not be sacrificed unless it becomes necessary in the larger interests of the section of the society for the purpose of investigation, inquiry and trial. 

Usually, an “Investigation” is conducted by a police officer or by any other authorized person (other than a magistrate). It includes all the proceedings under the criminal procedure code for the collection of evidence. “Inquiry” means an act asking for information conducted by a Magistrate or a court and it does not include trial. “Trial” is not defined anywhere in the Code. Basically, it means that the judicial process where the question of guilt or innocence of the person accused of any offense is determined.

During investigation, inquiry or trial, adequate care has to be taken to provide protection against possible abuse of powers by the people on the society in general. The main processes for the production of things and documents are as follows:

• summons that is issued by a court;
• A written order issued by a police officer in charge of a police station; and
• Search and seizure with or without a warrant.

The procedure to be followed at the time of seizure is the same that is to be followed in case of a search under Section 100 of CrPC. Section 102 authorises a police officer to seize certain property. Sub-section (1) empowers a police officer to seize any property which is alleged or suspected to have been stolen or which is found in such circumstances that it may create suspicion of commission of an offence. Sub-section (2) states that a subordinate, who works under a police officer in charge of a police station, shall report the seizure to that officer. Sub-section (3) provides that every police officer exercising his duty under sub-section (1) is required to report the seizure to the nearest Magistrate falling within his jurisdiction and in case the property seized is such that it cannot be taken to the court, he may give custody of that property to any person after executing a bond undertaking to produce the property before the court as and when is required so as to give effect to the further orders of the court regarding its disposal.

Power to impound

The meaning of the word impound is to seize and take legal custody of (something, especially a vehicle, goods, or documents) because of an infringement of law.

Section 104 empowers the courts to impound any document or thing produced before it under the code, if it may think it to be fit.

Disposal of things found in search beyond the jurisdiction

Section 101 of CrPC provides for the disposal of things found in search beyond jurisdiction. It states that when some things are found by the court which is outside the local jurisdiction, but which is authorized to search shall be immediately taken before the court issuing the warrant unless such place is nearer to the Magistrate having jurisdiction therein than to such court, in which case the list and things shall be immediately taken before such Magistrate and unless there is a good cause to the contrary, such magistrate shall make an order authorizing them to be taken to court.

The Code of Criminal Procedure lays down the general rules that need to be followed in case of search, seizure and production of materials. Apart from these provisions, there are specific Acts and laws in case of search in special circumstances like CBI(Central Bureau Of Investigation) carries out its search according to the provisions laid down for its officers in the CBI manual. The police officer and the Magistrate need to be careful while carrying out search and seizure of persons or property. The search should be according to the laws if it is not then the search may be unlawful which can result in the release of a searched person or seized property. But there may arise many problems in regard to these procedures also as the reality is far more real as laid down in books. The system of India is quite corrupted which also results in a faulty investigation on the part of the police. The faulty police investigation system also includes medico-legal officers with little significance, according to legal and security experts. Medico-legal officers are essential to the judicial system as their findings or reports are the basis for investigations into criminal cases, but they work in total reliance on the police instead of conducting their official duty with independence and free of external pressures.

• https://blog.ipleaders.in/cbi-search-seizure/
• https://blog.ipleaders.in/can-police-search-house-office-without-warrant-india/
• https://indiankanoon.org/doc/956192/
• https://indiankanoon.org/doc/1319177/
• https://indiankanoon.org/doc/627930/

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Search and Seizure under CrPC

• CRPC Subject-wise Law Notes
• September 26, 2023

Search and seizure under CrPC are a crucial step in a proper investigation. The police have two ways to carry out a search and seizure. One way is with a legal warrant issued under specific laws like Sections 93, 94, 95 and 97. The other way is without a warrant, allowed under Sections 103, 165 and 166.

There are general rules for search and seizure outlined in Section 100 of the CrPC (Criminal Procedure Code). These rules are generally followed in cases under the Indian Penal Code and other laws, with slight differences. So, in all situations involving search and seizure, the investigating police should follow the rules in Sections 100 and 165 of the CrPC.

It’s worth noting that some special laws, like the Narcotic Drugs and Psychotropic Substances Act, 1985, have their own specific procedures for search and seizure that the police must follow.

The police may need to conduct searches in multiple places. One could be at the scene of the crime and others may be at locations where people involved in the crime are hiding, as well as places where evidence related to the crime is stored or hidden.

Meaning of Search and Seizure under CrPC

In the investigation process, “search” means looking into an individual or their property to find evidence, while “seizure” means taking possession of that property once the search is done. Search can limit a person’s use of their property, but it’s necessary for legal reasons. Article 19(5) of the Constitution of India acknowledges that the right to own property isn’t absolute and comes with some restrictions.

Here are some important points to keep in mind:

• Police can seize property in non-cognizable offence cases, but there must be a reasonable suspicion for the seizure.
• Only a police officer is authorized to seize property; they can’t delegate this task to someone else.
• Under Section 47 of CrPC, a police officer can enter and search premises with an arrest warrant. They can also break open doors or windows to free themselves or others in certain situations. Section 58 allows police to search a person anywhere in India.
• Section 165(1) of Cr.P.C permits police to search within their station’s limits but not when a court-issued warrant is involved.
• After a search, the police can seize some items. They must create a seizure report on the spot to follow the law, as people often accuse them of planting evidence.
• Courts have ruled that evidence obtained through illegal search and seizure may not always be inadmissible; it depends on the circumstances.
• Knowing arrest, search and seizure procedures can protect individuals from mistreatment by those responsible for maintaining law and order. It’s crucial to raise awareness about these topics.

Procedure for Search and Seizure under CrPC

The process for conducting searches and seizures is outlined as follows:

Section 91: The court or the officer in charge can issue a summon or a written order requiring a person to produce documents or items deemed important for an investigation, inquiry or legal proceedings. The person in possession of these documents or items must comply with the request and provide them at the specified time and place.

Section 92: If law enforcement agencies, including the District Magistrate and High Court, believe that a document, parcel or item held by postal or telegraph authorities is crucial for an investigation, trial or legal proceedings, they can instruct the postal or telegraph authority to deliver the item as per court directions. The court may also permit searches by postal or telegraph authorities to locate such items.

Section 93: A search warrant can be issued under several circumstances. Firstly, if the court believes that the person summoned or ordered will not produce the necessary document or item, a warrant can be issued against that person. It can also be issued when the court doesn’t know who possesses the document.

The court may specify the extent of the inspection and the person in charge of the inspection must follow these instructions. Only the District Magistrate or Chief Judicial Magistrate can authorize the search of documents in the custody of postal or telegraph authorities.

Section 94: This section deals with searches at places suspected of containing stolen property or forged documents. If a District Magistrate, Sub-divisional Magistrate or a Magistrate of the first class believes that a place is being used for storing stolen property or producing objectionable items as mentioned in this section, they can authorize a police officer (above the rank of constable) to enter the place with assistance if needed.

The police must conduct the search as specified in the warrant, taking possession of objectionable or stolen property. They must report this to the Magistrate or safeguard it until the offender is brought before the Magistrate. If they find anyone involved in the storage, sale or production of objectionable items or stolen property, they can detain the person and later present them before the Magistrate.

Objects considered objectionable under Section 94 include:

• Counterfeit coins, currency notes or stamps.
• Forged documents.
• False seals.
• Pieces of metal prohibited under the Metal Tokens Act, 1889 or brought into India in violation of Section 11 of the Customs Act, 1962.
• Items considered obscene under Section 292 of the IPC .
• Instruments that may be used for producing the above-mentioned objectionable items.

Section 95 empowers the court to declare certain publications as forfeited. If the State Government believes that an article, newspaper, document or book may contain content punishable under specific sections of the Indian Penal Code (IPC), such as 124A, 153A, 153B, 292, 293 or 295A, it can declare all copies of that material forfeited to the Government. A magistrate can authorize a police officer, not below the rank of Sub-Inspector, to seize these documents.

According to the warrant, the police can enter and search for these suspected documents on any premises. The terms “Newspaper” and “Book” have the same meanings as defined in the Press and Registration of Books Act, 1867 and “Document” includes drawings, paintings, photographs or other visible presentations.

For example, in the case of Anand Chintamani Dighe v. State of Maharashtra, the State Government seized a notice to forfeit the book titled “Mee Nathuram Godse Bolto ahe” (I am Nathuram Godse speaking) in all forms, including the Gujarati translation. The reason was that the publication of this book was believed to disrupt public peace, promote disharmony or incite hatred among different groups or communities.

Section 97 deals with the search of a person whose confinement constitutes an offence. If a District Magistrate, Sub-Divisional Magistrate or first-class Magistrate has reasonable grounds to believe this, they can issue a search warrant. The person to whom the search warrant is addressed must search for the confined person and, if found, bring them immediately before the Magistrate for further legal proceedings.

Section 98 addresses the process for restoring an abducted woman, including a female child under the age of 18.

Section 99 provides directions for search warrants. The provisions of Sections 38, 70, 72, 74, 77, 78 and 79 apply to all search warrants issued.

Procedures to be Followed During Search and Seizure under Section 100 of CRPC

During a search and seizure conducted under Section 100 of the Criminal Procedure Code (CrPC), it is crucial for the investigating police officer to adhere to specific procedures. Any deviations or violations of these procedures can have adverse consequences for the prosecution case and may invalidate the trial. Here is a simplified explanation of the procedures that should be followed:

Access and Facilities: Ensure that both search with a warrant and search without a warrant allow free entry and provide reasonable facilities.

Entry and Breaking: The police officer conducting the search is authorized to enter the premises. If necessary, they can forcefully open outer or inner doors or windows after properly notifying their authority and purpose and demanding admittance. Section 47(2) includes safeguards to protect the privacy of a pardanashin woman during the search. It’s essential to note that if improper or unlawful obstruction or resistance is encountered during the exercise of this power or the performance of official duty, reasonable means can be used to overcome such obstacles.

Search of Persons: To prevent the possibility of someone secretly concealing any article or item being searched for, Section 100(3) permits the search of individuals. If the person to be searched is a woman, another woman must conduct the search, with strict adherence to decency and respect for her modesty.

Presence of Witnesses: The search must take place in the presence of at least two independent and respectable residents of the locality where the search is being conducted. However, if no such residents from the locality are available or willing to act as witnesses, individuals from another locality can serve as witnesses. It is important to emphasize the respectability of the witnesses rather than their specific locality or independence.

This provision is intended to prevent potential manipulation and unfair practices by those authorized to conduct the search and to ensure that any incriminating evidence claimed to have been found in the searched premises was genuinely discovered there and was not planted by the search party. Having witnesses during a search is always recommended and their absence can weaken or even invalidate the admissibility of evidence regarding the discovered items.

Written Order to Witnesses: Section 100(4) requires the officer or person conducting the search to call the witnesses (often referred to as “panch witnesses”) to attend and witness the search and they may issue a written order for this purpose.

If an individual ordered to act as a witness neglects or refuses to attend and witness the search without reasonable cause, they may be deemed to have committed an offence under Section 187 of the Indian Penal Code as per Section 100(8).

Daylight Searches: Whenever possible, searches should be conducted during daylight hours. However, if the information is received after dusk, necessitating an immediate search of a house and if there is a risk of evidence being concealed or destroyed if the search is delayed until daybreak, the house should be sealed and guarded. If sealing and guarding are not feasible, the search should be conducted during the nighttime itself.

Exterior Inspection: Before entering the premises to be searched, inspect the exterior of the place to determine whether there are any means or facilities for introducing property from outside.

Mutual Search: Prior to commencing the search, both the investigating officer and the panch witnesses should conduct a mutual search of each other. This step ensures transparency and accountability.

Systematic and Thorough Search: Search and seizure under CrPC should be conducted in a systematic and thorough manner to ensure that no potential evidence is overlooked or compromised.

Withdrawal of Women: During the search and seizure under CrPC, women should be allowed to withdraw from the premises to safeguard their privacy and dignity.

Avoid Indiscriminate Search and Property Damage: I ndiscriminate search and damage to property should be avoided. The search should focus on the specific items or areas relevant to the investigation.

Presence of Occupant or Nominee: In every case, the occupant of the place being searched or their nominee should be permitted to attend during the search. Denying this permission may raise suspicions about the credibility of the discovered evidence. However, if the presence of the occupier or nominee could cause undue delay and frustrate the purpose of the search, their presence may be dispensed with.

Preparation of List: Prepare a list of all items seized during the search and specify the places where they were found. This list should be prepared by the police officer or the person conducting the search and should be signed by the panch witnesses. Notably, the signature of the accused on the search list is not legally required.

Search List Copies: Create a search list in quadruplicate. All copies should be signed by the police officer conducting the search and the witnesses to the search. The four copies serve different purposes:

• One copy is handed over to the owner or occupant of the house.
• The second copy is sent to the Magistrate.
• The third copy is included with the case diary and sent to the superior officer responsible for case diaries.
• The fourth copy becomes part of the station records, maintaining a record of the search.

Search and Seizure at Different Places under Sections 165 and 166 Read With Section 100 CRPC

Section 165 of the CrPC provides for exceptional circumstances in which responsible police officers can conduct searches without prior court authorization. However, the legislature has put limitations on these powers to prevent abuse and safeguard the rights of citizens.

Here’s an explanation of the key points in Section 165 CrPC:

Grounds for Belief: An officer-in-charge of a police station or an investigating officer can conduct a search if they have reasonable grounds to believe that something necessary for the investigation of an offence they are authorized to investigate may be found in a specific place within the jurisdiction of their police station. They must also believe that obtaining this item through other means would cause undue delay.

Recording Grounds: Before conducting the search, the investigating police officer must record the grounds for their belief. They must specify in writing the item they are searching for. This written record is known as the “record of reasons.”

Subordinate Officer: If the investigating police officer is unable to conduct the search personally, they can delegate the search to a subordinate officer. However, they must provide written orders specifying the place to be searched and the item sought. Copies of these records must be sent to the nearest Magistrate empowered to take cognizance of the offence.

When a search needs to be conducted in the jurisdiction of another police station, whether in the same district or a different one, the officer-in-charge of the investigating police station can request the officer-in-charge of the other station to conduct or arrange the search. However, if there is reason to believe that a delay in this process might result in the concealment or destruction of evidence, the investigating police officer can conduct or arrange the search themselves. In such cases, they must promptly notify the officer-in-charge of the police station in whose jurisdiction the search was conducted and the nearest Magistrate empowered to take cognizance of the offence. This ensures that evidence is not compromised due to unnecessary delays.

Additionally, Section 166A of CrPC empowers the investigating police officer to communicate with competent authorities for investigations in countries or places outside India when necessary.

These provisions aim to strike a balance between the need for effective investigations and the protection of individual rights and privacy. They grant limited powers to law enforcement while imposing strict procedural requirements to prevent abuse.

Search and Seizure at the Scene of Crime

When conducting a search and seizure under CrPC at the scene of a crime, the investigating police officer must follow specific procedures to preserve evidence and maintain the integrity of the investigation. Here are the key steps and guidelines:

Preservation of the Crime Scene: The investigating officer should never alter the position of objects at the crime scene, pick up or touch any item before it has been thoroughly documented. The officer should ensure that the original condition of the scene is preserved.

Initial Inquiries: The officer should contact the first person who arrived at the scene and gather initial information. This may include statements from witnesses or individuals present at the scene.

Preventing Interference: Unauthorized persons should not be allowed to interfere with the inspection of the crime scene. It’s essential to secure the area and prevent contamination of evidence.

Avoid Crowding: Excessive crowding at the scene should be avoided, as it can lead to the destruction of potential clues. The officer should manage the crowd and ensure that only authorized personnel are present.

Thorough Inspection: The officer should conduct a thorough and systematic inspection of the scene, avoiding any rush. Nothing should be considered trivial and every detail should be noted.

Use of Independent Witnesses: Independent witnesses from the local community should be summoned to assist in drawing a “panchanama” as required under Section 100 of the CrPC. These witnesses provide impartial verification of the search and seizure process under CrPC.

Accurate Documentation: The investigating officer should take accurate and detailed notes of the scene, including descriptions of objects and their exact locations. Sketches drawn to scale should also be created, showing the layout of the scene and the positions of relevant items. The exact position of evidence should be noted.

Photographs and Videographs: In important cases, photographs and videographs of the scene and any objects or evidence should be taken. Visual documentation helps in presenting a clear and accurate account of the crime scene.

Use of Sketches: Sketches should be prepared to scale, indicating compass points (North, South, East, West) and providing accurate distance measurements using appropriate units (e.g., inches, feet, meters). A ruler, scale and compass should be used for measurements.

Disposal of the Seized Property

The disposal of property seized by the police is subject to certain legal procedures and requirements. Here’s an explanation of how seized property is handled:

Custody of Seized Property: The police are not authorized to dispose of seized property without an order from the competent court. When the police seize property, they are responsible for its custody until proper legal procedures are followed.

Handing Over to a Person: Under sub-section (2) of Section 102 of the CrPC, the police have the authority to hand over the custody of seized property to a person who is willing to take responsibility for it. This person is required to execute a bond (a legal document) with the condition that they will produce the property before the court whenever required.

Sale in Specific Cases: In certain situations, if the seized property is subject to rapid decay (e.g., perishable goods) and the rightful owner is unknown or absent and the value of the property is less than five hundred rupees, the property may be sold by auction under the orders of the Superintendent of Police. This provision allows for the quick disposal of property that may otherwise go to waste.

Court Disposal: In all other cases and circumstances not covered by the above provisions, the court is empowered to determine the appropriate method of disposal for the seized property. This typically involves following the procedures outlined in Sections 457 and 458 of the CrPC.

Section 457: This section deals with the disposal of property when the rightful owner is known but cannot be found despite reasonable efforts. The court can order the property to be sold and the proceeds are held until the owner claims them.

Section 458: This section pertains to the disposal of property when there is no claimant or when the property is not required for any ongoing legal proceedings. The court may order the property to be sold or otherwise disposed of in a manner it deems appropriate.

Landmark Judgements on Search and Seizure under CrPC

These landmark judgments in Indian law address various aspects related to search and seizure under CrPC:

V. S. Kuttan Pillai v. Ramakrishnan: This case clarified that the procedural validity of search warrants does not violate Article 20(3) of the Indian Constitution , as a search for premises occupied by the accused does not compel the accused to provide evidence against themselves. This ruling upheld the legality of search warrants in such cases.

Ramesh vs Laxmi Bai: In this case, it was established that the custody of a son by his father should not be considered unlawful detention. Consequently, no search warrant could be issued in such circumstances. This judgment emphasized the importance of distinguishing between lawful custody and unlawful detention.

Matajog Dobey vs. H.C. Bhari: The court’s decision highlighted that when statutory provisions related to searches are not followed, the credibility of the evidence supporting the search may be diminished. However, it also noted that the defendant may provide sufficient reasons for non-compliance with these provisions.

State of Maharashtra vs. Tapas D. Neogy : This case affirmed that a “bank account” is considered property under Section 102 of the Criminal Procedure Code, empowering the police officer to seize the operation of such an account if it is linked to the commission of the offence under investigation. This judgment clarified the scope of property in the context of search and seizure under CrPC.

State of MP vs. Paltan Mallah: The court’s ruling emphasized that evidence obtained through an illegal search is not automatically excluded unless it causes the accused serious prejudice. The court has discretion to determine whether or not to accept such evidence, taking into account the circumstances of the case.

Modan Singh vs. State of Rajasthan: This case underscored that if the prosecuting officer provides compelling evidence of retrieving missing items, it is inappropriate to deny the proof of recovery solely because seizure witnesses may not fully support the prosecution’s version. The focus is on the strength of the evidence rather than the stance of seizure witnesses.

Difference Between Search and Seizure under CrPC

In the context of the CrPC in India, “search” and “seizure” are distinct legal processes, each serving a specific purpose within the criminal justice system. Here are the key differences between search and seizure under the CrPC:

• Definition: A search, under Section 93 of the CrPC, refers to the process of examining a person, place or premises to discover and collect material evidence related to a crime.
• Authorization: A search can be conducted either with a warrant issued under specific provisions of the CrPC (e.g., Sections 93, 94, 95 and 97) or without a warrant under certain provisions (e.g., Sections 103, 165 and 166).
• Purpose: The primary purpose of a search is to find and collect evidence that may be used in the investigation or prosecution of a criminal offence.
• Procedure: The CrPC outlines specific procedures for conducting searches, including the presence of independent witnesses and the preparation of detailed records, such as panchanama and sketches.
• Example: Searching a suspect’s home with a warrant to find and seize evidence related to a theft.
• Definition: Seizure, as it pertains to the CrPC, involves taking possession of an item, property or evidence that is found during a search.
• Authorization: Seizure is typically a part of the search process. When evidence or items related to a crime are discovered during a search, they are seized by the investigating officer.
• Purpose: The purpose of seizure is to secure and preserve evidence or items that are relevant to the investigation or prosecution of a criminal case.
• Procedure: The CrPC does not provide specific procedures for seizure itself, as it is an integral part of the search process. However, seized items must be properly documented and their chain of custody must be maintained.
• Example: During a search of a suspect’s vehicle, the police officer seized a bag containing stolen goods as evidence.

Here is a table summarising the key differences between search and seizure under CrPC:

Search and seizure under CrPC refer to the process of examining a person, place, or premises to collect material evidence and the act of taking possession of relevant items or evidence discovered during the search, respectively.

Both search and seizure under CrPC are important in the investigation and prosecution of criminal cases and they must be conducted in accordance with the procedures outlined in the CrPC to ensure the legality and reliability of the evidence collected.

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School Searches and Seizure

Can a student be searched at school and have their property taken.

Students have an “expectation of privacy” that applies outside and on school property. However, there are different rules for the different locations. There are also different rules based on who is doing the search and what item is being searched.

Can a student’s school locker or desk be searched?

Generally, any item that is considered property of the school can be searched without letting the student or the parent know. School staff can also give permission to the police to look in your locker or desk, even though you use it. Schools may have a policy on this and must be provided to students upon request.  

Can the school search my pockets, backpack, or other personal items?

When it comes to your body and property, there are rules that must be followed. Which rules apply depends on who is doing the search.

School staff may search a student if there are “reasonable grounds” that the search will turn up evidence that the student broke a school rule. This means that staff have more than a hunch that the student did something wrong before the search can happen. They must have specific reason to believe you broke a school rule. The search must be:

Justified when it starts, and

Reasonable in how it is done

There are a couple of factors to be looked at to establish a reasonable search.

The child’s age,

The gender of the child and the gender of the staff searching the child,

The rule or law that is believed to be broken.

For example, if a student is accused of having aspirin, which violates the school drug policy, it is reasonable for school staff to have the student empty pockets and look in a backpack.  But, if nothing is found, it is not ok to ask you to pull out your underwear band to look for aspirin there.  

Can a police officer search my pockets, backpack and other personal items?

If a police officer is doing the search, a different set of rules apply.

The police must follow a higher standard to search you. The police must have either

“Probable cause,” (Probable cause means a reasonable person believes a crime was, is, or will be committed.) or

a search warrant from a Court.

If the police do not have probable cause or a warrant, you can refuse to be searched.  If you are searched and evidence of a crime is found, that evidence may be kept out of Court.  This is something you can talk to a juvenile defense attorney about if you are charged in Court.  But, that evidence will not be kept out of a school discipline hearing, like an expulsion.

Can a School Resource Office search my pockets, backpack, and other personal items?

School resource officers are a little trickier.  Some courts in the country have said that school resource officers are like school staff and can follow the “reasonable grounds” rule.  Other courts in the country have said that school resource officers are the police and must follow the “probable cause” standard.  Maine courts have not ruled on this issue yet, so we do not know which rule must be followed by a school resource officer.

Can a student be questioned by school staff?

School staff have the right to question students.  Maine law does not say anything about whether the school has to first contact your parent.  The school district may have a policy that talks about this. Check the school’s website or call the administration office to see if there is a policy. 

It is important to know that anything a student says to school staff can be used against the student in either a school discipline case or in a juvenile court case.

If the police are involved in questioning the student at school, things change.  If the point of questioning is to find out if the student committed a crime, the police have to follow the rules for any criminal investigation.  If they do not follow those rules, what the student says to the police may be kept out of court if they are charged with a juvenile offense.  The student first need to know if you were in a “custodial setting” when the police questioned them at school.

What is a custodial setting?

Generally, students are in a custodial setting when they are with the police and are not free to leave.  If the police question the student when they are not free to leave, it is a “custodial interrogation.”  There are two factors to look at:

What were the circumstances leading up to you being in the setting, and

Would a “reasonable person” have felt they could stop the police officer’s questions and leave?

The student may not be told they are under arrest but still be in a custodial setting. If the interrogation or questioning is custodial (meaning they student do not feel free to leave), the police must give the student Miranda warnings BEFORE asking questions. Miranda warnings are:

The right to remain silent

To be warned that anything you say can and will be used against you

The right to an attorney

If you cannot afford an attorney, one will be provided to you

Do you understand your rights

Will you talk to me

If the student understands the student Miranda rights and still agrees to talk to the police, the student has waived those rights. That means what the student says to the police can be used against them.

Also, under Maine law, if the student is in a custodial setting, before the police can question them about crimes they think the student committed, their parent or legal guardian must be contacted. The parent must either be with you for the questioning or agree the police can question you without them being there.  

Depending on what the student is accused of, they may be facing school disciplinary action, juvenile charges in Court, or both.  The school disciplinary action will happen much faster than a juvenile court case.  Anything you say in the school discipline case can be used against you in the court case.