How to Respond to a Police Search
A routine stop or search can turn nasty. Have you thought of your rights and how you should handle a police search?
Because the police have wide authority and rights above those of ordinary citizens, it's hard to know what your legal rights are when it comes to a police search or seizure.
1. Ask for Identification
The first thing you need to know is that the police are required to have identification visible. In other words, you should be able to see their names on their uniforms.
If this is not the case, you may ask to see identification, to confirm that you are actually dealing with an officer of the law.
The police are within their rights to pull you over if you're driving, whether or not they can indicate a clear reason for doing so. However, they must have a valid reason to search your person or possessions, including your vehicle. Specifically, they must have reason to believe that you have been involved in some kind of illegal or criminal activity − sufficient to argue that a judge or magistrate would be willing to offer a search warrant in court.
Note that according to case law, an officer cannot search someone's person, house or car simply because they believe the person is "suspicious". This will not hold up in court. The police cannot arbitrarily search you or your home without being given specific legal authority to do so. You can therefore ask the officer what grounds they have to believe a search is necessary.
If you are feeling threatened or harassed, it's wise to take note of as many details as possible. In addition to the time and place, and the officer's name and station or branch, memorise the license plate number and look for the code printed on the side of the police vehicle. Letters represent the name of the station, while the digits are the squad car number
3. Rules for raodblocks
In the case of a roadblock, search and seizure is already sanctioned. You may not refuse the search. But you can ask to see the written authorisation for the roadblock, given by the National or Provincial Police Commissioner, before you submit to the search. If, for any reason, you are not convinced of the validity of a roadblock, or if you feel unsafe, you can request to be taken to the nearest police station.
Note that body searches can only ever be undertaken by officers of the same sex as the person being searched. For instance, if a woman is pulled over and there is no woman officer to do the search, no search can proceed until a female officer arrives.
The police can arrest a citizen on the strength of a warrant of arrest, if they witness the person committing an offence or if they have probable cause to believe the person was involved in a crime.
The police have the power to arrest anyone who they have seem committing an offence in their presence; anyone they suspect of having committed a crime; anyone in possession of property they suspect has been stolen; anyone encountered at night in suspicious circumstances suggesting a crime has been, or is about to be, committed.
5. Your reaction to being arrested
If you are approached by a police officer wanting to detain you, remain calm and cooperate. Don't try to flee, become aggressive or offer a bribe. If you try to resist arrest, the officer may use reasonable force to arrest you.
When being arrested, note that:
A police officer may not verbally or physically abuse or intimidate you. They may not threaten you with violence or assault you. If they do, remain calm. You can report it at any police station afterwards. Note that you do not need to report it at the station of the officer in question.
If you have been assaulted while being searched or detained, you may take action for civil damages against the police in question and the Minister of Safety and Security.
If you're detained and injured as a result of assault, ask to be seen by a district surgeon, who should take note of any injuries. This is often the only evidence you can gather because your only witnesses may be the police themselves.
The decision to mediate, and when, can be a matter of strategic and fundamental importance in resolving a dispute and should be given full consideration in each situation. Even where mediation is prescribed, by court or contract, for example, a considerable amount of preparation, planning and strategy is required. This is where a legal representative who is fully versed in the mediation process can prove to be invaluable.
Unfortunately, in South Africa, and in many other countries around the world, the mediation process is often considered to be a ‘soft option’. This is quite untrue. Mediation requires a significant amount of hard work from participants and their representatives to achieve an outcome that is acceptable to both.
Your legal representative should properly understand the benefits of mediation, how it can be used to resolve a dispute, and should know when mediation is appropriate. Some legal representatives may even be able to guide you through the mediation process.
Some of the roles that legal representatives play in mediation are that they:
The success of mediation depends, to a large extent, on strict confidentiality and on your willingness to participate in an active way.
It’s a good idea to involve your attorney, particularly if he or she is open to being collaborative and is also open to helping you to solve the issues at hand.