Can the police search your house without a warrant?

Police arrive at a house and want to come in. In the three or four seconds that follow, most people either step aside or start arguing, and both reactions are usually uninformed. The law here is short and worth knowing before the knock.

The rule: get a warrant

Section 21 of the Criminal Procedure Act 51 of 1977 is the starting point. An article may ordinarily be seized only under a search warrant.

A warrant is issued by a magistrate or a justice of the peace, on information given under oath, if it appears that there are grounds for believing the article is in the possession or under the control of a person or on particular premises. The standard is not proof beyond reasonable doubt, but it must be more than a mere suspicion. A judicial officer stands between the police and your home, and that is the point of the requirement.

If police arrive with a warrant, you are entitled to see it. Read what it authorises: which premises, which articles, and in connection with what offence. A warrant is not a general licence to look anywhere for anything.

The exceptions: section 22

Section 22 permits a search without a warrant in two situations, and only two.

Consent. Where the person concerned consents to the search and to the seizure of the article in question.

Reasonable grounds. Where a police official on reasonable grounds believes both that a search warrant would be issued if applied for, and that the delay in obtaining the warrant would defeat the object of the search.

Both parts of the second exception have to be satisfied. It is not enough that the officer thinks a warrant would be granted. There must also be a reason why waiting for one would frustrate the search, which in practice means a real risk that evidence will be destroyed, removed or hidden in the meantime.

"Reasonable grounds" is an objective question decided by a court on the facts, and the officer has to show that the grounds existed at the time the decision to search was taken. Grounds discovered during the search do not retrospectively justify starting it.

Consent is a decision, not a formality

Consent is the exception that swallows the rule in practice, because most warrantless searches happen with it.

Understand what it does. If you consent, the search is lawful. The question of whether a warrant would have been issued, and whether there was urgency, never arises. You have removed the protection section 21 gives you.

If you do not want to consent, say so, in those words, and say it clearly enough that others hear it. "I do not consent to a search." You are not obstructing anybody by saying it, and it does not stop the police searching if section 22 genuinely applies. What it does is preserve the argument about whether it applied.

Consent should also be informed and voluntary. Consent given because you were told you had no choice, or because you were threatened, is worth examining afterwards.

Other powers that are not section 22

Warrantless entry is not confined to section 22, and it helps to know the difference so you can tell what you are dealing with.

Arrest. Where police are lawfully arresting someone, they have powers to search that person and, in defined circumstances, the immediate surroundings. Our guide on whether police can arrest you without a warrant covers the arrest power itself.

Other statutes. A number of Acts give inspection and search powers in their own fields, including customs, liquor and firearms legislation, and those have their own requirements.

Cordon and search operations, which are authorised in advance for a defined area under the South African Police Service Act rather than under the Criminal Procedure Act.

Roadblocks, which are authorised separately and concern vehicles rather than homes.

If police tell you they are acting under a power other than a warrant, ask which one. You are entitled to know the basis on which your home is being entered.

Your car, your phone and your person

The warrant rule is about premises and articles, but people usually want to know about three other things, and each is governed slightly differently.

Your vehicle. A car is not a home, and the expectation of privacy in it is lower. It can be stopped and checked under road traffic powers for licences and roadworthiness, which is not a criminal search at all, and it can be searched at an authorised roadblock. A search of the vehicle for evidence of an offence outside those powers still needs a warrant or the section 22 grounds.

Your body and your bags. Searching a person is dealt with separately, and the powers are wider on arrest than before it. Where a search of a person is carried out, it should be done by an officer of the same gender, and a search that goes beyond what the situation requires is itself unlawful.

Your phone. Seizing a phone and searching its contents are two different acts. A device may be seized as an article, but the data on it attracts its own protection, and the interception and monitoring of communications is governed by separate legislation with its own authorisation requirements. You are not obliged to volunteer a password, and the question of what can be compelled is genuinely contested. If police ask for your phone's PIN, that is the moment to say you want to speak to a lawyer rather than to unlock it to seem cooperative.

What to do while it is happening

The time to argue about the law is afterwards. The time to gather evidence is now.

Do not physically obstruct. Resisting or interfering creates an offence where none existed, and it will overshadow everything else.

Say whether you consent. Clearly, once, and in front of other people if possible.

Ask for and photograph the warrant. If there is one, read what it covers.

Get names and numbers. The officers' names, ranks, station and force numbers, and the registration of the vehicle.

Record what you can. You may film in your own home. Note the time they arrived, the time they left, which rooms were searched, and who was present.

Ask for an inventory of anything seized. You are entitled to know what was taken, and you will need that list to get it back.

Write it down the same day. Memory degrades quickly and a contemporaneous note is evidence.

If the search was unlawful

An unlawful search has two distinct consequences and they are worth separating.

The evidence. Evidence obtained unlawfully is not automatically excluded in South Africa. A court asks whether admitting it would render the trial unfair or otherwise be detrimental to the administration of justice. That is a real argument and it is regularly run, but it is not a rule that unlawful means inadmissible.

The civil claim. An unlawful search is an invasion of privacy and, where it involved unlawful detention or assault, more than that. A claim lies against the Minister of Police, and there are notice requirements and time limits under the legislation governing proceedings against organs of state, so advice should be taken early rather than after a year of complaining.

You can also lay a complaint with the Independent Police Investigative Directorate, which investigates police misconduct, and that is free.

Getting your property back

Seized property is not forfeited by being seized. Where it is no longer required as evidence, and no criminal proceedings follow or those proceedings end, you can apply for its return.

In practice the difficulty is administrative rather than legal: the item is in an exhibit store, the docket has moved, and nobody is in a hurry. Start with the investigating officer and the case number, ask in writing, and keep the inventory you were given. If the matter has been finalised, say so and say when.

Worked example

This example is illustrative. Two officers arrive at Andile's flat at nine in the evening. They say they have information that stolen electronics are inside and ask to come in. There is no warrant.

If Andile says yes, the search is lawful on consent and that is the end of the legal question.

If he says "I do not consent to a search", the officers must either obtain a warrant or rely on section 22. To rely on it they must reasonably believe both that a warrant would be issued and that the delay in getting one would defeat the object. Whether that holds up depends on what they actually knew: an anonymous tip-off with no detail is weaker than a description from a complainant who followed a suspect to the door minutes earlier.

Either way Andile should not block the doorway. He should state his position, note the officers' names and numbers, ask for an inventory of anything taken, and write down the sequence of events that night.

If a search proceeds and items are seized, the lawfulness of the search becomes a live issue in any prosecution and the foundation of any civil claim. Both of those arguments are built from what Andile recorded in the first hour, not from what he shouted in the first minute.