gaurds searched vehicle while owner not present

nick1984

hi all looking for some advice a friend of mine has had his house raided due to someone informing the police he was dealing drugs which is a complete and utter lie nothing was found a few weeks before his home was broke in to and items taken along with money he had been saving for christmas to buy his kids presents

today his vehicle was taken off him by the gaurds and they showed the same warrant they had previously used to search his house i have read the warrant myself and no where does it state that his vehicle can be searched thy never searched the vehicle while they had previosly searched the house they took the vehicle off him brought it to the garda station searched the vehicle without him present and told him they had found a small quantity of cannbis in the vehicle

where does he stand with this as he wasn't with the vehicle when the gaurds searched it and may well have planted the evidence as they found nothing at the house

MyKeyG

nick1984 wrote: »

hi all looking for some advice a friend of mine has had his house raided due to someone informing the police he was dealing drugs which is a complete and utter lie nothing was found a few weeks before his home was broke in to and items taken along with money he had been saving for christmas to buy his kids presents

today his vehicle was taken off him by the gaurds and they showed the same warrant they had previously used to search his house i have read the warrant myself and no where does it state that his vehicle can be searched thy never searched the vehicle while they had previosly searched the house they took the vehicle off him brought it to the garda station searched the vehicle without him present and told him they had found a small quantity of cannbis in the vehicle

where does he stand with this as he wasn't with the vehicle when the gaurds searched it and may well have planted the evidence as they found nothing at the house

Does 'your friend' have a problem with solicitors?

nick1984

no why his solicitor is not availible to speak too as he's not working
thats why i posted here

CharlieCroker

Gardai don't need a warrant to search a vehicle under s.23 of the misuse of drugs act

tayto lover

It might be part of the Croke Park Agreement.

nick1984

CharlieCroker wrote: »

Gardai don't need a warrant to search a vehicle under s.23 of the misuse of drugs act

while he was not present i cant believe that tbh that would give them a chance to plant any evidence in the vehicle

nick1984

tayto lover wrote: »

It might be part of the Croke Park Agreement.

dont know what that is

MyKeyG

Misuse of Drugs Act, 1977

23.—(1) A member of the Garda Síochána who with reasonable cause suspects that a person is in possession in contravention of this Act of a controlled drug, may without warrant—

(a) search the person and, if he considers it necessary for that purpose, detain the person for such time as is reasonably necessary for making the search,

(b) search any vehicle, vessel or aircraft in which he suspects that such drug may be found and for the purpose of carrying out the search may, if he thinks fit, require the person who for the time being is in control of such vehicle, vessel or aircraft to bring it to a stop and when stopped to refrain from moving it, or in case such vehicle, vessel or aircraft is already stationary, to refrain from moving it, or

(c) seize and detain anything found in the course of a search under this section which with such cause appears to him to be something which might be required as evidence in proceedings for an offence under this Act.

(2) Nothing in this section shall operate to prejudice any power to search, or to seize or detain property which may be exercised by a member of the Garda Síochána apart from this section.

MagicSean

Exactly what advice are you looking for? How to falsely claim gardai planted evidence? Not really sure you'll even find a solicitor who'll help him with that.

MyKeyG

MagicSean wrote: »

Exactly what advice are you looking for? How to falsely claim gardai planted evidence? Not really sure you'll even find a solicitor who'll help him with that.

Yes OP you weren't actually clear on whether the cannabis was his. You just said he wasn't dealing. The Guards were well within their rights to perform the search and if they found a controlled substance then your friend is caught bang to rights.

castie

When searching would the Garda not have to explain or inact certain laws to allow him to search?

i.e

If he could arrest and detain you under Act A
But instead arrested and detained you under Act B (which was invalid)

Could it then be argued that the arrest and detention were unlawful? or could the garda then say when contested your now arrested and detained under Act A and the detention up to this point becomes lawful also?

Similar here it seems he has shown the warrant to empower him to search the vehicle. Whether there is other legislation or not (Croke Park Agreement) which also allows him to do it should not matter. If the warrant proves invalid for a search on the vehicle then any evidence I would think would be unlawfully obtained as the garda took the route of using the warrant.

Im no lawyer at all here so just trying to apply my understanding of some things. Just seems a bit crazy to me that the garda could tell a person one thing which later proves invalid and then refer to a "back up" plan to correct his error while having the search remain lawful.

Also it could prove here that the warrant does cover the car anyway.

Also how long is a warrant valid for?
Surely if a warrant is granted it cannot be enacted every single day until it expires. (extreme overuse scenario)

MagicSean

The drugs warrant is one of a few that last for a month and can be used more than once in that time.

castie

MagicSean wrote: »

The drugs warrant is one of a few that last for a month and can be used more than once in that time.

When you say more than once..how many times until its considered harrasment?
And would they usually have to be specific in mentioning property/vehicle distinction?

MagicSean

castie wrote: »

When you say more than once..how many times until its considered harrasment?
And would they usually have to be specific in mentioning property/vehicle distinction?

It depends. If they use the warrant every day for a month and find drugs each time then it could be considered justified use. If they use it once a week and never find anything they might be hard pressed to justify it's use.

There is no distinction between vehicle and land. If the vehicle is on the land for which the warrant is issued then it is liable to search. If it is outside then it would be searched under Section 23 with the warrant as justification for the suspicion required to search it.

castie

MagicSean wrote: »

It depends. If they use the warrant every day for a month and find drugs each time then it could be considered justified use. If they use it once a week and never find anything they might be hard pressed to justify it's use.

There is no distinction between vehicle and land. If the vehicle is on the land for which the warrant is issued then it is liable to search. If it is outside then it would be searched under Section 23 with the warrant as justification for the suspicion required to search it.

Yeah assumption was they werent finding anything.
Of course if they do find something then future use is valid.

When you say it would be searched under Section 23 does the garda have to inform the owner that this is what hes doing?

Can a garda just wave a warrant (not saying this is what happened) not mention section 23 and then search the car that is not on the land for which the warrant was issued and this still be considered a lawful search?

MagicSean

Can't see why the owner would need to be informed if he is not in the vehicle and it is in a public place. A car doesn't have constitutional rights that can be violated.

castie

MagicSean wrote: »

Can't see why the owner would need to be informed if he is not in the vehicle and it is in a public place. A car doesn't have constitutional rights that can be violated.

A garda cannot just search a car because its in a public place and does not have someone in it.
He needs to justify the search.

Question is if he justifies it to the owner in a way which later proves was unlawful does anything found in the search then stand.

MagicSean

castie wrote: »

A garda cannot just search a car because its in a public place and does not have someone in it.
He needs to justify the search.

Question is if he justifies it to the owner in a way which later proves was unlawful does anything found in the search then stand.

If a garda is walking along the street and he sees an unoccupied car with a kilo of what appears to be cocaine on the front seat do you think he should have to find the owner before searching the car?

I've said this before. There is no obligation on Gardaí to "justify" themselves in the execution of their duty ot in the use of their powers. If a drugs warrant is issued for a persons house then there is plenty of cause to search that persons car too.

Perhaps I'm missing your point.

McCrack

I think 'justify' in this sense is legal basis. There obviously needs to be it to conduct a MDA search and the person told in ordinary language the reason for the search.

castie

MagicSean wrote: »

If a garda is walking along the street and he sees an unoccupied car with a kilo of what appears to be cocaine on the front seat do you think he should have to find the owner before searching the car?

Thats not what you said that I was contradicting. You infered that a car parked without owner on public property is searchable which is not true. There must be valid reason to suspect and this reason can then be challenged.

MagicSean wrote: »

I've said this before. There is no obligation on Gardaí to "justify" themselves in the execution of their duty ot in the use of their powers. If a drugs warrant is issued for a persons house then there is plenty of cause to search that persons car too.

Perhaps I'm missing your point.

This is a load of rubbish.
Of course they have to justify their actions.
Otherwise we wouldnt have an Ombudsman....

The question I thought was quite clear.

Garda shows you warrant and tells you this entitles him to search your car.
He takes the car searches and finds something. (lets say this kilo of cocaine)

Later it is made clear that the warrant only affected the land and not the vehicle.

Is this now an illegal search?
Or can a garda revert back to different legislation (i.e the Croke Park Agreement) to then justify the search?

MagicSean

castie wrote: »

Thats not what you said that I was contradicting. You infered that a car parked without owner on public property is searchable which is not true. There must be valid reason to suspect and this reason can then be challenged.

Yes, and I also said that if the owner of said car had a search warrant issued against him for his home then that would create a reasonable suspicion to search the vehicle.

castie wrote: »

This is a load of rubbish.
Of course they have to justify their actions.
Otherwise we wouldnt have an Ombudsman....

The question I thought was quite clear.

Garda shows you warrant and tells you this entitles him to search your car.
He takes the car searches and finds something. (lets say this kilo of cocaine)

Later it is made clear that the warrant only affected the land and not the vehicle.

Is this now an illegal search?
Or can a garda revert back to different legislation (i.e the Croke Park Agreement) to then justify the search?

They may have to justify their afterwards to a superior or to a court but they do not have to argue their reasons with someone during the execution of their duty.

If a car is parked on a property for which a warrant is issued then the search of the car is covered by the warrant. If it is parked outside the property then the warrant provides a reasonable suspicion for a search under Section 23.

castie

MagicSean wrote: »

They may have to justify their afterwards to a superior or to a court but they do not have to argue their reasons with someone during the execution of their duty.

If a car is parked on a property for which a warrant is issued then the search of the car is covered by the warrant. If it is parked outside the property then the warrant provides a reasonable suspicion for a search under Section 23.

Im not saying they have to.
Im saying they already have given a reason.

So Garda has told the person he is searching his car under the warrant which turns out to be in error as the warrant does not cover the car.

Please ignore any "oh he doesnt have to tell him" as he already has.

McCrack

As MagicSean has said, S23 will catch the car.

http://www.irishstatutebook.ie/1977/en/act/pub/0012/sec0023.html#sec23


But what has the Croke Park Agreement got to do with this discussion?

castie

McCrack wrote: »

As MagicSean has said, S23 will catch the car.

http://www.irishstatutebook.ie/1977/en/act/pub/0012/sec0023.html#sec23


But what has the Croke Park Agreement got to do with this discussion?

Sorry my bad.
Someone mentioned Croke Park Agreement and next post someone quoted S23.
Jumped to the conclusion that the quote was associated with it.


S23 will justify a search yes.
My question is will it justify it if the Garda informs the owner of the vehicle that it is being searched on the basis of a warrant that later proves not to include the vehicle.

The general form of what im asking is

Garda tells you hes going to do A for reason X.
In performing X evidence was discovered against you.
Later it is proved X did not apply but in fact Y could of been applied.

Can the evidence found under reason X be used in court given reason X could be judged to be unlawful?

Turner

Nick

Did you ask your friend did he own the cannabis found in the car?

Is he saying the Gardai planted it or is he just trying to find ways not to face up to the consequences of his actions.

McCrack

castie wrote: »

Sorry my bad.
Someone mentioned Croke Park Agreement and next post someone quoted S23.
Jumped to the conclusion that the quote was associated with it.


S23 will justify a search yes.
My question is will it justify it if the Garda informs the owner of the vehicle that it is being searched on the basis of a warrant that later proves not to include the vehicle.

The general form of what im asking is

Garda tells you hes going to do A for reason X.
In performing X evidence was discovered against you.
Later it is proved X did not apply but in fact Y could of been applied.

Can the evidence found under reason X be used in court given reason X could be judged to be unlawful?

There's a whole body of jurisprudence built up over many years on that. There is no easy simple answer and much is circumstance specific.

The Courts have said generally that evidence gathered has to be lawfully obtained but they do allow for innocent breaches for statutory/constitutional rights particularly where they are minor.

I think what you are trying to ask is if a Garda for example conducts a drugs search (S23 search for instance) on a person in the street and finds him/her in possession of a knife but no drugs. In that instance that person can be charged with possession of an offence weapon notwithstanding that the statutory power invoked was for Misuse of Drugs.

The S23 search will still be required to have been made with reasonable cause and that can be tested by the solicitor/barrister for the accused.

If that search was found to be illegal (i.e. made without cause) then the case may be struck out by the Judge notwithstanding the accused was clearly in possession of a knife.

theAwakening

castie wrote: »

Thats not what you said that I was contradicting. You infered that a car parked without owner on public property is searchable which is not true. There must be valid reason to suspect and this reason can then be challenged.



Is this now an illegal search?
Or can a garda revert back to different legislation (i.e the Croke Park Agreement) to then justify the search?

The Croke Park Agreement has nothing to do with this.

a car can be searched, under the remit of a search warrant if the car is located on the land to which the warrant applies, or alternatively section 23 mda 77/84, once the car is located in a place where the garda has right of entry by expressed/implied consent, statutory power, common law power etc. ..regardless of where the owner is at the time

ANSI

MagicSean wrote: »

Exactly what advice are you looking for? How to falsely claim gardai planted evidence? N.

maybe they did plant it

nick1984

Turner wrote: »

Nick

Did you ask your friend did he own the cannabis found in the car?

Is he saying the Gardai planted it or is he just trying to find ways not to face up to the consequences of his actions.

no he doesnt know where this cannabis came from why in gods name would he carry drugs in his vehicle with his children in it thats just plain stupid an idiotic

CharlieCroker

Yes it is stupid, doesn't mean he didn't do it. I'd be surprised if a guard "planted" anything. In these times, nobody wants to risk their job over a few quids worth of skunk that if convicted will in all likelyhood end with a small fine, or if he has no previous convictions, the probation act! EVERY guard knows this so why would they risk their job, home, car and reputation to "get" your friend?

IMO, your friend is being economical with the truth.

opti76

how did your friend get a copy of the warrant that's the exact same as the warrant he was previously shown. does he have both warrants???

Carawaystick

CharlieCroker wrote: »

Yes it is stupid, doesn't mean he didn't do it. I'd be surprised if a guard "planted" anything. In these times, nobody wants to risk their job over a few quids worth of skunk that if convicted will in all likelyhood end with a small fine, or if he has no previous convictions, the probation act! EVERY guard knows this so why would they risk their job, home, car and reputation to "get" your friend?

IMO, your friend is being economical with the truth.

Come on, read the reports of the Morris tribunal re risking their jobs over coffee grinder fulls of manure....

tayto lover

Carawaystick wrote: »

Come on, read the reports of the Morris tribunal re risking their jobs over coffee grinder fulls of manure....

I think the Morris Tribunal only mentioned a handful of garda and there must be about 12/13 thousand of them. That occurrence was in different times too as i think much has changed in the garda since the troubles. What percentage of the force was that anyway?

deadwood

Isn't posession of manure in a coffe grinder contrary to section 23 of the Croke Park Agreement?

tayto lover

deadwood wrote: »

Isn't posession of manure in a coffe grinder contrary to section 23 of the Croke Park Agreement?

As is spouting it.

nick1984

opti76 wrote: »

how did your friend get a copy of the warrant that's the exact same as the warrant he was previously shown. does he have both warrants???

he asked for a copy of the warrant