ARRESTS, SEARCHES AND

WARRANTS CRIMINAL PROCEDURE

 MEANING OF ARREST
An arrest is the deprivation of liberty for the purpose of compelling a
person to appear in court or other authority to answer a criminal charge
or to testify against another person. It usually involves the taking of the
person arrested in custody whereby he is detained or confined.

Every individual in Uganda has a constitutional protection as to personal

liberty enshrined in the bill of rights. Arresting a person therefore means
interfering with his personal liberty. Therefore, a person will not be
deprived of his liberty save as may be authorized by law. (Article 23)
 METHOD OF ARREST
Section 2(1) of the CPC provides that in the making of an arrest the police officer
making the same shall actually touch or confine the body of the person to be
arrested.

If such a person forcibly resists the endeavor to arrest him or attempts to

evade the arrest, such police officer or other person making the arrest may use
all means necessary to effect the arrest.

However, there is an important proviso qualifying the use of force to the effect
that nothing contained in this section 2 of the CPC shall be deemed to justify the
use of greater force than is reasonable in the circumstances in which it is employed
or is necessary for the apprehension of the offender. S.2(2) & (3) of the CPC.
 METHOD OF ARREST CONT’D
Only reasonably necessary force is allowed to be used in order to effect an arrest.
Excessive or unwarranted force is unlawful. In other words, there is no need to touch
the person being arrested if he agrees to go with the person effecting arrest
without resistance or argument. - POLICE ACT S.16(1) , CPC S.15
It is even unnecessary to handcuff or tie him if he behaves himself and intends to
cause no trouble.
Under section 5 of the CPC, it is provided that a person arrested should not be
subjected to more restraint than is necessary to prevent his or her escape.
EG. If a police officer comes across a young man trying to steal a tyre from a motor
vehicle at Katwe and asks the man to follow him to the Central Police Station and he
willingly agrees to go without any danger of his escaping, there is no need to
handcuff him and push him around. It is unlawful and unnecessary to assault a person
who is already in custody.
 METHOD OF ARREST CONT’D
Note: Where any person is charged with a criminal offence arising out of the
arrest or attempted arrest, by him of a person who forcibly resists such arrest or
attempts to evade being arrested the court should, in considering whether the
means used were necessary or the degree of force used was reasonable for the
apprehension of such person, have regard to the gravity of the offence which has
been or was being committed by such person and the circumstances in which such
offence had been or was being committed by such person.

Before use of force is employed, the arresting person should take into account the
seriousness of the offence committed and the manner in which it was committed. If
the offence is grave and violence is involved, the arresting officer may be justified
to use deadly force like a firearm to arrest the offender, or prevent him from
escaping.
SEARCHES AND WARRANTS
 SEARCHES
Law applicable.
The Criminal Procedure Code Act cap 116
The Police Act cap 303
The Magistrate’s court Act cap 16

Definition of a search.
A search may be defined as an inspection made on a person or in a building for the
purpose of ascertaining whether anything useful in criminal investigation may be
discovered on the body of the person or in the building searched.
A search is carried out for the purpose of collecting evidence and exhibits which may
be used in a criminal trial. A search may be carried out in anyplace whether it be within
premises or outside, or in a vehicle.
Normally searches are carried out on the authority of search warrants issued by the
court, but police officers are empowered to search without a warrant in certain cases.
 SEARCH OF ARRESTED PERSONS
▪A police officer has power to search any person who has been arrested and to take
possession of anything found on such a person which might reasonably be used as
evidence in any criminal proceedings. S.6 (2) of the CPC.

▪ Whenever a person is arrested without a warrant, by a private person under a

warrant, and the person arrested cannot be released on bail, the police officer making
the arrest or the re arrest has power to search such a person and place in safe custody
all articles other than necessary clothing, which are found on him.

▪ A police officer or any person making the arrest has power to seize any offensive
weapons found with an accused person. S. 9 CPC
▪ Whenever it is necessary to search a woman, the search must be carried out by
another woman with strict regard to decency. S.8 CPC and s. 23 (2) of the police Act.
 SEARCH OF PREMISES OF ARRESTED PERSONS
When a police officer has reason to believe that material
evidence can be obtained in connection with an offence for
which an arrest has been made. Or of the person for whom the
warrant of arrest has been issued, and he has power to seize
anything which might reasonably be used as evidence in any
criminal proceedings. (s.69 MCA).

If the person to be arrested enters any building or place, the

arresting officer or person has power to enter the premises and
search them. (S.3(1) CPC)
 POWER TO STOP AND SEARCH PERSONS AND
VEHICLES
Any police officer has power to stop, search or detain any
vessel, boat, aircraft or vehicle where he has reason to
suspect that anything stolen or unlawfully obtained may be
found.

A police officer has similar powers in respect of any person

who may be reasonably suspected of having in his possession
or conveying in any manner any thing stolen or unlawfully
obtained. The police officer is authorized to seize such thing.
S.7 CPC.
 SEARCH WITH A SEARCH WARRANT
A search warrant is written authority given by a court ordering the search of the
premises, place, or vessel named in the warrant for the purpose of seizing
anything therein which is required or material in the investigation of an offence.

In other words, a search warrant is an authority to search a place for evidence of

a crime which is suspected or believed to have happened. The two main reasons
why it may be necessary to search a place are:- to make an arrest and second,
to obtain evidence.

A search warrant must be signed by the magistrate issuing it, and must bear the
seal of the court. S.56(1) and s. 74 MCA. Every such warrant remains in force until
it is executed or until it is cancelled by the court which issued it. S. 55(3) MCA.
 SEARCH WITH A SEARCH WARRANT CONT’D
The direction in the search warrant must be strictly observed.
The person to whom it is directed is not supposed to seize articles which
are not mentioned in the warrant unless such unnamed articles are likely
to provide additional evidence as to the identity of such articles, or
which at least, have some relevance in the charge against the accused
person.

Thus the seizure of irrelevant articles is not only legally unjustified but
may damage the prosecution’s case. In order to prove that the articles
seized were from the accused, it is necessary to prove the contents of
the warrant.
 MOHANLAL TRIVEDI V R
The appellant was convicted of being in possession of property
reasonably suspected of having been stolen and failing to give a
satisfactory account of his possession. The police searched the house
and shop of the appellant for a camera. Although they didn’t find the
camera, they found an exposure meter which was the subject matter of
the charge.

On appeal it was contend among others that the conviction ought not to
stand as no search warrant was produced and there was no evidence to
show that the appellant’s house and shop were the buildings named in
the warrant. The prosecution failed to prove the contents of the warrant
because of their failure to produce it in evidence.
 POWER TO ISSUE A SEARCH WARRANT
If it is proved on oath to a magistrate that anything which is
necessary to the conduct of investigation into any offence is in a
building, vessel, carriage, box, the court has power to issue a
search warrant authorizing the person to whom it is directed to
search such place for such a thing.

The place to be searched for is found, the person carrying out

the search is empowered to seize and carry it to the court which
issued the search warrant or some other court to be use as an
exhibit. S. 70 MCA
 EXECUTION OF SEARCH WARRANTS
A search warrant may be directed to one or more police officers or chiefs named therein or
generally to all police officers and chiefs. However where the immediate execution of search
warrant is necessary and no police officer or chief is available, the issuing court may order any
other person to carry out the search.
Where a search warrant is directed to more than one officer or person, it may be executed by
all or any one of them. S. 58 MCA

A Search warrant directed to a police officer may also be executed by any other police officer
whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed. The
position is the same as regards chiefs. S. 60 MCA.

Every search warrant may be issued and executed on a Sunday. It must be executed between the
time of sunrise and sunset, although the court has power to authorize the police officer or other
person to whom it is addressed to execute it at any hour. S. 71 MCA.
 SEARCH OF CLOSED PLACES
Whenever any building or other place liable to be searched is closed, any person residing in or
being in charge of such building must, on demand of the officer or person executing the search
warrant, and on production of the warrant, allow him free entrance and exit from the building.
The person in charge of the building is also required to afford the person searching all
reasonable facilities for the search. S.72 (1) MCA.

If entrance or exit is not allowed, the person executing the warrant is authorized to break in or
break out of the building. S. 71(2) MCA and s. 4 CPC.

If any person is found in or near the building to be searched , and is reasonably suspected of
concealing on his body any article for which search should be made, such person may also be
searched. If the person is a woman, she must be searched by a woman. S. 72(3) MCA and s.
23(2) of the CPC.
 DETENTION OF PROPERTY SEIZED
When anything is seized and is brought before a court, it may be
detained until the conclusion of the case or the investigation. Reasonable
care must be taken for its preservation. S. 73(1) MCA.

If any appeal is made, or if any person is committed for trial, the court
must order it to be further detained for the purpose of appeal or the
trial. S. 3(2) MCA. If no appeal is made, or if no person is committed
for trial, the court must direct such thing to be restored to the person
from whom it was taken, unless the court sees fit, or… authorized, to
dispose of it otherwise. S. 72(3) MCA.
 SEARCHES WITHOUT A SEARCH WARRANT
Under s. 7 of the CPC, a police officer is authorized without a search warrant to
stop, search or detain a vehicle, vessel, or aircraft, if he has reason to suspect
that it contains stolen property or property un lawfully obtained. In any way he
can stop and search any person and seize any property found on him.

s. 7 (1) of CPC provides;

Any police officer may stop, search or detain any vessel, boat, air craft o r
vehicle in or upon which there is reason to suspect that anything stolen or
unlawfully obtained may be found and also any person who may be reasonably
suspected of having in his possession or conveying in any manner anything stolen
or unlawfully obtained, and may seize such thing.
 SEARCHES WITHOUT A SEARCH WARRANT CONT’D
The application of this section is called into question when a police
officer after stopping and searching, proceeds to charge the person
searched with an offence under s.300 of the penal code act.
On a charge under this section, the prosecution must satisfy the court
that there was reasonable suspicion before the vehicle or person was
stopped and searched.

In other words, suspicion must precede the stopping. Suspicion which

may be reasonable, arising or manifesting itself after the stopping will
not render the action of the police officer legal under section 7 of the
CPC.
 SEARCHES WITHOUT A SEARCH WARRANT CONT’D

Read Kityo Vs. Uganda 1967 EA 23.

It should be noted that the power of stopping and searching
under s.7 of the CPC is vested only in police officers. For
example, chiefs would not be acting lawfully if they assumed to
exercise powers under this section

Read Tenywa V Uganda 1969 EA 102.

END