Search of Premises upon making an arrest (Sections 18, 32(2)(b))

The series continues with further discussion of powers of entry and search under Sections 18 and 32 of the Police and Criminal Evidence Act 1984.

Section 32 covers the situation where the police have arrested a person and wish to search those premises on which he has been arrested or in which the person was immediately before the arrest. Section 18 deals with the situation where a person has already been arrested for an arrestable offence away from his own premises and the police now wish to enter and search premises occupied or controlled by him. The sections can thus overlap but they each offer distinctive features. Taken together they afford the police ample opportunity to search the premises of an arrested person, and have considerably clarified and altered the common law. One may also note that S17 authorises entry to and search of premises for persons who are to be arrested for an arrestable offence and other offences. The S18 or the S32(2)(b) power may follow such entry and arrest. It must be emphasised that a search of premises for evidence following an entry under S17 can only follow if an arrest is made. A common reason for seeking a warrant to search premises, rather than use Sections 17, 18 or 32(2)(b) is that the person sought may not be on the premises. If he is not, the occupiers may be alerted and remove any evidence of that or any other offence. Section 19 permits the seizure of such evidence if the constable comes across it in the search for the person.

Section 32

The common law allowed the police to search an arrested person and his ‘immediate surroundings’ (Dillon v O’Brien (1887), Elias v Pasmore (1934); cf the position in the United States where a search is confined to the ‘immediate vicinity’ of the arrest — Chimel v California (1969)). Section 32 contains no such spatial limitation, except that imposed by S32(7) in respect of premises consisting of two or more separate dwellings. Premises’, it will be recalled,are given a wide interpretation by S23. They need not be owned by the arrested person and thus the facts of Elias v Passmore (1934) and McLorie v Oxford (1982) are encompassed. In the former the plaintiff was arrested on the premises of the National Unemployed Workers Movement, its offices were searched and papers were seized. In contrast, S18 only covers premises which are ‘occupied or controlled’ by the arrested person. Consequently, when the police have arrested X on emerging from his house, they can search it under S32 (because he was there ‘immediately before’ the arrest) or under S18. If, however, X has just left someone else’s house, they can only use S32 to search those premises and must use S18 to enter and search X’s house. As regards McLorie v Oxford, premises could have been, but were not, searched at the time of arrest and it was held that the common law did not permit the police to return later to search them. Despite the fact that S32(2)(b) contains no time limit on the exercise of the search power, in R v Badham (1987) a Crown Court refused to regard an attempted entry some four hours after the arrest as lawful under S32(2)(b), thus perpetuating the common law. The court felt that S32(2)(b) was an immediate power, and that it would be wrong to have an open-ended right to go back to the premises where an arrest had taken place. That, however, ignores the availability of the S18 power. When the arrest is for an arrestable offence S18 is not an immediate power and usually is exercised some time after the arrest. If D is arrested for an arrestable offence in premises occupied or controlled by him it makes no difference which power is used. It may be convenient to search the premises at the time of the arrest (which may then be under S18 or S32(2)(b) but there is no reason why the S18 power may not be exercised then or later. Indeed there appears to be no reason why the S18 power should not be exercised more than once in respect of the same premises, subject to reasonable cause and authorisation. A search under S32(2)(b) can only take place