Powers of search
When the Gardaí are conducting their investigation of a crime, they may need to search certain premises to look for evidence. Generally, the gardaí must obtain a search warrant before they may search your premises or home without your consent.
A Garda can ask you to stop at any time. In certain circumstances, such as when you are driving, you must stop if asked to by a garda. A Garda can search you, without your consent, if the Garda has reasonable suspicion that you have committed certain offences. This includes people under the age of 18. The Garda should tell you why you are being searched.
A search warrant is a written order giving a person authority to enter a premises and search for and seize property. They may be issued to Gardaí or to other authorised people for example, health inspectors, health and safety inspectors, social welfare officers, TV licence inspectors. The circumstances in which search warrants may be issued vary from one piece of legislation to another.
Generally, search warrants are issued by District Court Judges or peace commissioners when a Garda makes a statement on oath that they know or has reasonable cause for believing or suspecting that a crime has been or is being committed.
In general, reasonable force may be used to execute a search warrant.
Items of evidence obtained as a result of a legal and valid search may be kept and used as evidence in any criminal proceedings against you.
Search warrants must be executed within the time limits set out in them. If they are not executed within the time limits, then any information obtained as a result of the search may not be admitted in evidence in a trial.
Necessity for a search warrant
A search warrant is often necessary before a Garda may search a premises or any person present. However, certain legislation entitles the Gardai to enter premises without a warrant, for example, the Intoxicating Liquor Acts, the Public Dance Halls Act, and the Health Acts.
If a Garda gets a search warrant relating to certain offences he/she may search the premises named and any person on the premises. Examples of this are a search warrant issued under the Offences Against the State Act 1939, or the Criminal Justice (Theft and Fraud) Offences Act 2001. Under the Criminal Justice (Miscellaneous Provisions) Act 1979, as amended by Section 6 of the Criminal Justice Act 2006, the Gardaí can obtain a warrant in relation to an arrestable offence.
Other legislation, for example, the Dublin Police Act, the Misuse of Drugs Act, the Criminal Law Act and the Animal Remedies Act, entitles police officers to search you and/or your vehicle without a warrant.
If one of these statutes is being invoked in order to search you without a search warrant, you are entitled to told about it.
Evidence obtained on foot of an invalid search warrant or obtained without a warrant may be excluded by the trial judge and excluded particularly if the search involved a deliberate and conscious breach of your constitutional rights.
In extraordinary excusing circumstances, the court may allow evidence obtained as a result of a deliberate and conscious breach of the Constitution. However, these circumstances are very rare, for example, a case involving an urgent need to rescue a victim in danger.
Search on arrest
When you are arrested, the Gardai may take goods in your possession if they believe that it is necessary to do so and if the goods are evidence in support of a criminal charge. The Gardai may search you after your arrest without a search warrant and the goods seized may be kept and used as evidence at your trial.
More information on Garda search powers is available in the Irish Council for Civil Liberties (ICCL) Know Your Rights publication Criminal Justice and Garda Powers.