rights regarding garda search

Goodshape

Just watched this video which outlines the rights U.S. citizens have during police encounters and I'm basically wondering how this relates to the laws in this country.

Specifically, does a garda have the right to search you or your vehicle without your consent (during a traffic stop for example)?

And is refusing to give consent on the spot likely to land you down the station (as is often insinuated), or will that be the end of the matter?


...and if anyone 'in the know' wants to watch the entire video (40mins.. it's actually quite informative), feel free to comment on anything else that would work differently on this fair island

grumpytrousers

AFAIK there's no 'statutory' right for a guard to 'blanket' stop and search (there might be under certain drug laws...) unless they have a 'good reason' for doing so in the first place; thus if the guard says 'i want to search the boot' and you ask him 'what law are you relying on to give you the authority?' he might not have a good answer to your question.

However, there's the whole thing of the common law where it's pretty much accepted by the judiciary etc that in order to carry out duties, there are kinda 'unenumerated rights' which the cops have which allow them to carry out their functions, namely the detection and prevention of crime.

thus, if you allowed the guards to search your car, they found something there that shouldn't be and then you tried to get off on the 'technicality' that they had no authority, there's a chance (and a good one) that the judge would say 'the guard is only doing his job'....

Goodshape

grumpytrousers wrote:

thus, if you allowed the guards to search your car, they found something there that shouldn't be and then you tried to get off on the 'technicality' that they had no authority, there's a chance (and a good one) that the judge would say 'the guard is only doing his job'....

If I allowed the guard to perform the search then OK. I'm wondering if I would have the power to say no.

In the video I linked to (which is U.S. centric) they run through a couple of scenarios, first showing how the cop can easily convince you to wave your rights (by having you consent to a search, for instance) and then the same scenario with the perpetrator being more assertive and 'getting away with it'.

The first scenario is a traffic stop. Three student types on the way to a concert get pulled over for speeding. They've obviously had a joint or two. In the first run through they play right into the cops hands.. roll down the window all the way, allowing the cop to stick his nose in and 'smell something'.. admit to speeding straight off the bat.. get out of the car leaving the door open - the cop instantly makes for the door saying 'well, if you have nothing to hide you won't mind if I have a look, right?', to which the driver says 'no'. Cop takes out a bag and gives a spiel about doing this the easy way, or else '...', so they say he can look inside.. finds some grass and they all get busted.

Second run through, the window is wound down just a bit, the guy admits to nothing straight off and has the cop tell him why he was pulled over, they get out and lock the door behind them.. cop asks does this mean they're hiding something, guy says no, he just doesn't consent to a search. Cop gives the same spiel about doing things the easy way, guy simply asks if they are under arrest or free to go? cop goes of in a huff, comes back with a speeding ticket and that's the end of it.

I've been in a car which was stopped before (we were actually parked at the time by a beach) and we basically played it just like the first run through here. Nerves got to us and we gave them plenty of leeway, not knowing any better. They were looking under seats and in glove boxes and all sorts. In the end they found absolutely nothing and couldn't have been more obviously annoyed about it.

dermot_sheehan

Section 23 Misuse of Drugs Act 1977

http://www.irishstatutebook.ie/ZZA12Y1977S23.html


Guards may search any person or vehicle without a warrant provided they have "reasonable cause"

section 25 http://www.irishstatutebook.ie/ZZA12Y1977S25.html

Gardai may arrest anyone with reasonable cause that they committed on offence under the act

section 26 http://www.irishstatutebook.ie/ZZA12Y1977S26.html

Guards can apply for a search warrant to search any premises

Constitutional Protection in Ireland in this area is very weak. Instead of the 4th Amendment we have article 40.5

The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.

Our man in Havana

I suppose that a refusal would count as reasonable cause?

Goodshape

Cheers for that gabhain7. 'reasonable cause' is what the cop had in the first run through of the scenario I posted, as the driver did nothing to prevent him sticking his nose in the car and smelling 'something'.

The video is actually pretty clear on the fact that if they have probable cause, such as something illicit sitting in plain view, then they're free to do what they want. From what you've posted that seems to be pretty much the same in this country.

So if the situation arises I think I'll politely refuse a search until they produce such a justifiable reason.

dermot_sheehan

Bear in mind the interpreatation of reasonable suspicion under the Irish Misuse of Drugs Act is probably different to probable cause under the U.S. 4th amendment.

Also if guards acquire evidence illegally but not inviolation of your constitutional rights its admissable at the discretion of the trial judge. So contesting whether a garda formed a reasonable suspicion could be irrelevent if the judge exercises his discretion to admit the evidence anyway.

In the U.S. evidence found in violation of your constitutional rights is automatically excluded. This is the same in Ireland (People v. O'Brien, DPP v. Kenny), however irish constitutional protection only applies when you are in your own home (see post above, refers to dwelling). For example in the Kenny case a drugs conviction was thrown out because the drugs were seized from a house with an invalid search warrant. Similarly in the recent Curtin case, if seizure from a home was illegal its in violation of the constitution and the evidence is automatically excluded.