Top-Rated Free Essay
Preview

Stop and Search Demonstrations

Powerful Essays
1495 Words
Grammar
Grammar
Plagiarism
Plagiarism
Writing
Writing
Score
Score
Stop and Search Demonstrations
Public law– Stop and Search and Arrest

I would advise Norbert that there are several factors that need to be considered before concluding if his search was legal. Firstly the question arises that did the policemen have the right to stop and search Norbert. It can be argued that the police did have the right to stop Norbert under PACE (s 1(3)) as they were suspicious that Norbert was involved in the theft that had taken place in the next street and Norbert was a well known burglar (Bentley v Brudzinski ), however it can also be argued that Norbert was coincidently there to meet his posh new girlfriend and “reasonable suspicion can never be supported on the fact that the person is known to have a previous conviction, this cannot be used alone as the reason for searching” Norbert. R v Bristol.

When Norbert is approached by the police and asked questions, he has the legal right to remain silent and not to answer any questions unless he is arrested as confirmed by the judgment made in the case of Rice v Connolly. He is within his rights at common law to remain silent however Norbert cooperates with the police and answers their questions.

Norbert denies any knowledge about the theft and refuses a request to turn out his pockets, another question arises here because if Norbert was not guilty then he would not have hesitated to empty out his pockets, and this has lead to the police becoming more suspicious that Norbert was involved in the theft. However Norbert can argue that he did not believe that the two men he was approached by were policemen as they did not introduce themselves, and therefore refused to turn out his pockets Kenlin v Gardiner (1967). Because of the limited information that we have been given I am assuming that the policemen were not wearing uniform, the case study also does not mention whether a warrant card was shown or not and therefore I am assuming that it wasn’t. Legally if a police man is not wearing uniform then a warrant card must be shown under the Police Return Act 2002 SCH 4 para 15.

“Under section 2 of PACE 1984, a police officer who proposes to carry out a stop and search must state his name and police station and the purpose of the search” in this case PC Mallard and PC Drake have not introduced themselves and have not told Norbert about the purpose of the search, and legally they were supposed to. (DPP v Avery). However it can be argued that because Norbert is well known to the 2 police officers, the police officers did not consider re introducing themselves, although legally they should have.

The second factor that Norbert needs to consider on the legality of the search is that a street search “must be limited to outer clothing, the searched person cannot be required to remove any article of clothing other than a jacket, outer clothes or gloves” in this case PC Drake removes Norbert’s hat, coat and shoes as well as searching his sports bag in a bus shelter. The police legally had the right to remove Norbert’s coat and hat however they did not legally have the right to remove his shoes in the bus stop and also to search his bag under PACE section 2 (3) (c). And therefore this search was unlawful R v Fennelly). A bus shelter is a public place and therefore it should not have been used to search Norbert, the officers should have also tried to reduce the embarrassment that Norbert had experienced, they could have easily been able to do this by searching Norbert in a police van or at the police station rather than conducting the search in the bus shelter. This also affected other individuals as those who wanted to wait for the bus couldn’t, as PC Mallard motioned them away.

During the stop and search PC Drake finds a screwdriver and a pair of wire cutters in Norbert’s pockets. The items found are not offensive weapons but can be intended to use as such, it is an offence to possess such items without good reason. It can be argued that Norbert was carrying these items to try and fix his girlfriends walkman which was broken and it was not intended to use these items as offensive weapons. “An offensive weapon is defined meaning any article made or adapted for use for causing injury to persons or intended by the person having it with him to use”. According to section 1 (6) any items found can be seized, if these items were seized then it would be lawful and the correct procedures of PACE would have been followed.

In this case PC Mallard and PC Drake had the right under PACE section 24 to arrest Norbert as they were suspicious that Norbert was involved in the burglary that took place in the next street and Norbert is a prolific burglar, if it was the PCSO then they would not have the right to arrest Norbert. However reasonable suspicion cannot be supported because of the fact that Norbert was previously involved in burglaries in the city centre, this could not be used alone as the reason for searching Norbert.

After the search took place Norbert is arrested. “Under section 24 of PACE, a constable may arrest without warrant to anyone whom he has reasonable grounds for suspecting to be about to commit an offence.” According to this section of PACE PC Mallard and PC Drake lawfully had the right to arrest Norbert as they were suspicious that he was involved with the burglary, however the arrest was unlawful as Norbert was not informed of the grounds of the arrest at the time of or as soon as practicable after the arrest Christie v Leachinsky . Under PACE section 28 it clearly states that no arrest is lawful unless the person arrested is informed of the grounds of the arrest.

Another question arises here, was Norbert given the opportunity to consult a solicitor, friend or relative when held in custody at a police station or other premises. According to section 56 of PACE Norbert had the right to inform someone when arrested as highlighted in the case of R v Kerawalla According to section 58 of PACE Norbert had the right to consult a solicitor privately at any time. Due to the limited information that we have been given I do not know whether Norbert had access to this or not but if he did not then the fairness of the proceedings would have to be questioned. R. v. Samuel.

Looking at the case and PACE facts it can be concluded that the arrest was unlawful because firstly when Norbert was first approached by the police he was not told the purpose of the search, the two police officers searched him although according to PACE they lawfully could not search him to see whether he was carrying stolen property or not as highlighted in the case of Jackson v Stevenson. The search was also unlawful because whilst conducting the search Norbert’s shoes were removed and according to PACE section 1, outer clothing can only be removed such as coat, jacket or gloves.

The arrest was also unlawful because the grounds of arrest were not stated and also because of the limited information that we have been given we do not whether Norbert was cautioned using the following terms, “you do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence”

--------------------------------------------
[ 1 ]. Bentley v Brudzinski [1982] Crim LR 825
[ 2 ]. Gary Slapper and David Kelly (2009). The English Legal System. 9th ed. USA and Canada: Routledge-Cavendish. Page 445
[ 3 ]. R v Bristol (2007) EWCA Crim 3214 CA)
[ 4 ]. Rice v Connolly (1966) 2 QB414
[ 5 ]. Kenlin v Gardiner [1967] 2 QB 510; [1967] WLR 129; [1966] 3 All ER 931
[ 6 ]. Gary Slapper and David Kelly (2009). The English Legal System. 9th ed. USA and Canada: Routledge-Cavendish. Page 444
[ 7 ]. DPP v Avery [2002] Crim LR 142
[ 8 ]. Gary Slapper and David Kelly (2009). The English Legal System. 9th ed. USA and Canada: Routledge-Cavendish. Page 444
[ 9 ]. R v Fennelly [1989] Crim LR 142
[ 10 ]. Gary Slapper and David Kelly (2009). The English Legal System. 9th ed. USA and Canada: Routledge-Cavendish. Page 443
[ 11 ]. Gary Slapper and David Kelly (2009). The English Legal System. 9th ed. USA and Canada: Routledge-Cavendish. Page 436.
[ 12 ]. Christie v Leachinsky (1947) CA 573, 593,
[ 13 ]. R v Kerawalla (1991) Crim LR 451.
[ 14 ]. R. v. Samuel [1988] 2 W.L.R. 920
[ 15 ]. Jackson v Stevenson (1879) 2 Adam 255
[ 16 ]. Chris Taylor (2009). Constitutional And Administrative Law. London: Pearson Education Limited 2008,2009. Page 102.

You May Also Find These Documents Helpful

  • Better Essays

    Case Analysis

    • 1841 Words
    • 8 Pages

    In order to answer these questions there are a few tort liability issues that need to be discussed. The first issue is false imprisonment. “False imprisonment is the intentional confinement of another person within fixed boundaries without lawful justification.” (Kerr, 19) In this case, Smiley could have left the store, but was led to believe that Rocco would stop him if he tried. There was no physical restraint in this situation and no justification on suspicion of shoplifting; however, the detention was psychological. Smiley believed that Rocco would physically restrain him if he tried to leave the store. If this tort was brought in court, Rocco could use the defence of legal authority. “The defence of legal authority is raised where the defendant claims that a statutory provision authorizes the conduct that would otherwise constitute a tort.” (Kerr, 29) Since Rocco is considered a private citizen and not a police officer, he can only make an arrest if a crime is actually being committed at the time. Rocco believed that Smiley was committing a crime because he was informed so by Maldini. In this case, however, Smiley was not committing the crime of shoplifting and Rocco…

    • 1841 Words
    • 8 Pages
    Better Essays
  • Powerful Essays

    The criminal justice system works in such a way that certain behavior or actions are legislated as a criminal offense wherein the state or the federal government can prosecute an offender even if only being suspected. In this case, there exists rules or limits into which protection are of highest concerns. It does not only apply to civilian suspects but also extends to actual prisoners, and to those who are on parole and under probation. But in reality, it has become a worldwide issue in terms of illegal searches. It has even been stipulated in the U.S. Constitution 's Bill of Rights stating that these restrictions start on the premises of the rights to refuse to testify against oneself, the right to confront one 's accuser and the right to a trial by jury for people charged with crimes. But these federal protections may not always seem to hold especially when police enforcers are dealing with prisoners, people on parole and on probation status. This happens because the jurisdictions regarding these matters depend on the ruling court. The court regulates and decides whether the legislative rule, court practice or police action is permissible under the federal and state constitutional law. From here, we can say during the course of searches, we should be aware and vigilant of possible violations by the apprehending police officers. In such cases, knowledge of the legality, technicality and the law should at least be required or at least explained to the person being searched. As mentioned a while ago, the case becomes quite sensitive for people who are imprisoned, on parole and under probation. The situation for them is very difficult in the sense that they are…

    • 2812 Words
    • 12 Pages
    Powerful Essays
  • Good Essays

    Stop and frisk is a controversial topic which has many retractors as supporters. On internet the information about this topic is really broad. However, in this response I did a research based on pros of the stop and frisk program. I took information from newspapers, TV channels, blogs, forums, research of universities. Moreover, I looked for other topics related such as; increase of violence, illegal guns, gun violence, weapons in schools, and also, gangs in NYC.…

    • 647 Words
    • 3 Pages
    Good Essays
  • Good Essays

    Today around 1,400 citizens in New York City will have their constitutional rights violated through an unlawful search. The legal term for the controversial search is stop and frisk. The New York Police Department continues to pressure its officers to stop and frisk citizens, and these situations are happening at an alarmingly increasing rate. For the New York Police Department, it seems to be a game of numbers as they continue to force their officers to conduct stop and frisks through quotas (Gangi). While New York City has seen a decrease in crime over Mayor Bloomberg's term, it is difficult to directly correlate the stop and frisk policy with these decreases. This unlawful practice needs to stop as it is a controversial practice that many people believe is a direct violation of the human rights inherent for citizens. Furthermore, it could turn New York City into a police state.…

    • 1108 Words
    • 5 Pages
    Good Essays
  • Better Essays

    Stop and Frisk for Law

    • 1231 Words
    • 5 Pages

    In America, police targeting black people for excessive and unwarranted search and seizure is a practice older than the Republic itself. Ethnicity and stop and frisk laws have called for the attention of the courts to determine whether it is an abuse of power and whether minorities are the majority when pertaining to stop and frisk laws. This research will focus on the effects ethnicity has on stop and frisks laws.…

    • 1231 Words
    • 5 Pages
    Better Essays
  • Powerful Essays

    Stop and Frisk

    • 1557 Words
    • 5 Pages

    My name is _________ and I am here to bring attention to the “Stop and Frisk Laws” and how they affect our youth and damage our society. Also through this exchange of information I hope to show how these type of laws go against our constitutional rights.…

    • 1557 Words
    • 5 Pages
    Powerful Essays
  • Good Essays

    Stop and Frisk

    • 688 Words
    • 3 Pages

    The Stop and Frisk program employed by the New York Police Department, gives police officers the right to initiate a stop of an individual on the street allegedly based on reasonable suspicion of criminal activity. Stop and frisk has been an NYPD tool for decades, but in recent years it has generated an increased amount of criticism and debate due to the alarming rate in which they occur communities of color, who often feel under attack and harassed by the police. Minorities even make up the majority percentage of people searched in predominantly white neighborhoods, which is why I believe that either some kind of quota or limit system should be implement where only a certain percentage of people stopped cane be of a specific race or from specific neighborhood, or New York City should just get rid of the program all together.…

    • 688 Words
    • 3 Pages
    Good Essays
  • Good Essays

    Stop and Frisk

    • 497 Words
    • 2 Pages

    The Fourth Amendment of the United States Constitution protects people against unreasonable searches and seizures. Modern officials have granted police officers in New York City an incentive to respect the amendment. The Stop and Frisk program employed by the New York Police Department, gives police officers the right to initiate a stop of an individual on the street allegedly and do a quick search of their outer clothes for weapons based on if the officer has a reasonable suspicion that a crime has or is about to take place and the person stopped is armed or dangerous. This reasonable suspicion is not based with specific facts but from the hunches from New York Police officers.…

    • 497 Words
    • 2 Pages
    Good Essays
  • Satisfactory Essays

    In an effort to maximize an individuals rights during search and seizures along with stop-and-frisks, the United States government has developed numerous laws and amendments. The Fourth Amendment states, The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched , and the persons or things to be seized (U.S. Constitution). This amendment was first used in the court system in the case of Terry vs. Ohio (1968). This case was the case that shaped the stop-and-frisk laws that are found in our country today. In 1942 legislators started to authorize stops-and-frisks on less than probable cause under the Uniform Arrest Act. This act gave an officer the right stop a person in public based upon reasonable ground to suspect that the person is committing has committed, or is about to commit a crime, and then search him for a dangerous weapon if the officer has reasonable ground to believe that he is in danger (Whitebread, 2000). In 1968 the Supreme Court addressed the issue in terry v. ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889. In Terry an experienced plainclothes officer observed three men acting suspiciously; they were walking back and forth on a street and peering into a particular store window. The officer concluded that the men were preparing to rob a nearby store and approached them. He identified himself as a police officer and asked for their names. Unsatisfied with their responses, he then subjected one of the men to a frisk, which produced a gun for which the suspect…

    • 372 Words
    • 2 Pages
    Satisfactory Essays
  • Good Essays

    stop and frisk

    • 756 Words
    • 4 Pages

    In America there have been multiple tyrannical actions that the government have used on citizens and innocent bystanders. One of these actions are called “Stop and Frisk” which is a prevalent tactic used, especially in New York. “Stop and Frisk” means to be randomly searched by police or high authority when they suspect a bystander is carrying something suspicious. “Stop and Frisk” is a political issue that has been a concern for a long period of time. According to the articles “Growing up with Stop and Frisk” by Sara Maria Glanowski and “Why Stop and Frisk Matters, Even if You Don’t Live in New York” by Andrew Cohen, the cons towards “Stop and Frisk” is clearly stated and relevant. People are being stopped based off racial profiling, while statistics proves that majority of the time, they are innocent. Stop and Frisk must be impermissible and abolished because it is unconstitutional and individuals are stopped based off appearance and not on evidence that proves there guilty.…

    • 756 Words
    • 4 Pages
    Good Essays
  • Good Essays

    Stop and Frisk

    • 514 Words
    • 3 Pages

    The first thing to take into account is the actual number of arrests using the given statistics. This means that in 2002 there were 11,446 arrests compared to 20,330 arrests made in 2008. During this time the total population only grew by about 300,000 citizens or about 1.5%. The increase of arrests was definitely due to policy change, as is illustrated when comparing population growth numbers by the increase in people actually stopped and those arrested.…

    • 514 Words
    • 3 Pages
    Good Essays
  • Better Essays

    Fourth Amendment Exceptions

    • 2977 Words
    • 12 Pages

    The differentiation between open fields and private property must be made before one can proceed to form an opinion regarding the constitutionality of a warrantless search of an open field. Oliver v. United States is a case in which police officers, acting on reports from neighbors that a patch of marijuana was being cultivated on the Oliver farm, entered on to private property ignoring "No Trespassing" signs, and on to a secluded open portion of the Oliver property without a warrant, discovered the marijuana patch and then arrested Oliver without an arrest warrant. The Maine Judicial Court held that "No Trespassing" signs posted around the Oliver property "evinced a reasonable expectation of privacy," and therefore the court held that the "open fields" doctrine was not applicable to the Oliver case.…

    • 2977 Words
    • 12 Pages
    Better Essays
  • Satisfactory Essays

    People should have always have the right to remain silent during questioning or, in the court of law. They shouldn’t have to talk until they have a lawyer or someone to council them; so they don’t mess up their words and be considered…

    • 487 Words
    • 2 Pages
    Satisfactory Essays
  • Good Essays

    Kafka Trial Analysis

    • 479 Words
    • 2 Pages

    The guards largely have no answers for the things that K. is asking of them, simply stating that he is guilty because the Law itself is attracted to guilt. They are just “lowly employees” and implicitly believe that who they are arresting is guilty because it has been determined by “higher authorities”. They are simply disinterested with the why of his arrest and largely his guilt, affirming he is guilty among his protests of innocence. The notion that the Law itself is attracted by the guilty is strange to me. By saying that, he infers that in one way or another because K. is deemed guilty, he would end up arrested by the guards, his fate was determined the moment…

    • 479 Words
    • 2 Pages
    Good Essays
  • Better Essays

    For generations people of color have been put into a system caste of injustice. From slavery, to the Jim Crow era, and now in today’s society. Today in the United States the incarceration rate has nearly tripled over the years. With the significant increase in the incarceration rates, it leads you to wonder what the cause may be. The government has found a way to indirectly create another system caste, which we live in today. That system caste is called the mass incarceration, also known as the New Jim Crow. In the mass incarceration one term can describe the whole system of injustice; The Prison Industrial Complex. The Prison Industrial…

    • 1004 Words
    • 5 Pages
    Better Essays