"Reasonable grounds" in search for drugs

The intention of this article is to examine the reported cases upon searches carried out on the authority of Section 23 of the Misuse of Drugs Act 1971, particularly those post-dating Sheriff Stoddart’s book on “Criminal Warrants”, or not included therein.

It is clear at a glance that a constable, having reasonable grounds to suspect that any person is in possession of a controlled drug, may search such a person, and also any relevant vehicle or vessel, by subsection (2).  This statutory warrant, as it is called for example in Lucas v Lockhart (1980) SCCR Supp. 256, is not to be confused with a documentary warrant granted under subsection (3).

Both subsections have been productive of problems of interpretation.  Not all the answers are themselves without difficulty.

Interpretation

As to the powers of search prescribed in subsection (2), the condition precedent of their exercise is “reasonable grounds” to suspect.  The earliest report is that of Lucas v Lockhart, where all that the police had to go on was that the accused had had “some previous involvement with drugs.”  The Court held:  “The first question in the case is in these terms: In the circumstances found proved, did the police officers have reasonable grounds for suspecting that the appellant was in possession of a controlled drug, thus entitling them to search the appellant under Section 23 of the Misuse of Drugs Act 1971?  To that question there is only one answer, and it is given of consent of the Crown.  The answer is no.”

Although not expressly invoked, such reasoning was used also in Young v H.M. Advocate 1986 SCCR 583 where the Court held: “It appears plain to us that the evidence of his being in possession of heroin on 2nd April at a different locus is not relevant to the issue of whether he was in possession of heroin six weeks earlier”, the only difference in the circumstances being the direction of the time intervals.

Ireland v Russell 1995 SCCR 685 was a case where there may or may not have been reasonable grounds to suspect.  Its value in practice is that it makes it clear that those grounds must be the subject of evidence accepted by judge or jury.  Merely to claim them or assert their existence is not enough: “All that we are told in finding 6 is that there was read out to him a statement to the effect that they had reason to suspect that he was in possession of controlled drugs.  But there is no finding to the effect that they had reasonable grounds for any such suspicion and there is nothing in either the findings or the note which the sheriff has written suggesting that there was evidence before the sheriff from the police officers to the effect that they believed that they had reasonable grounds for such a suspicion”.  Per Lord Justice-Clerk at p.687E.

(Dr Robert S. Shiels in his book on Controlled Drugs (2nd Edition, 1997) quotes an unreported case to the opposite effect, i.e. where the searching police would say no more than that they had reasonable grounds to suspect, and the evidence was admitted: Balloch v Pagan, Unreported, High Court of Justiciary, 25 November 1975.)

Suspicious behaviour is not enough if it cannot be specifically related to controlled drugs: Don v Donnelly 1997 SCCR 448.

“The complainer had been seen leaving the vehicle and running into the house, attempting to conceal a bag.  This followed an incident some twenty-two minutes earlier when the same car had been driven off at high speed when the police attempted to stop it in order to carry out a routine check, although the complainer had not been identified as one of the occupants of the vehicle at that stage.  When the complainer came out of the house, she was no longer carrying the bag.  While we accept that the police had reasonable ground for suspecting that the complainer was attempting to conceal from them the contents of the bag which she had been carrying, we are not persuaded that there was reasonable ground for suspecting that it contained controlled drugs.” Per Lord Kirkwood at p.451D.

It appears however that “reasonable grounds” can include a suspicion that the person to be searched had called at a house, as in Guthrie v Hamilton 1988 SCCR 330; 1988 JC 90; 1988 SLT 823, “either to obtain or deliver controlled drugs”.  Such suspicion spoken to by two constables who were engaged in searching the house was held to justify them in suspecting that the caller was in possession of controlled drugs.

Another gloss on the strict statutory requirement of reasonable grounds to suspect a person of being in possession of controlled drugs occurs in Stuart v Crowe 1992 SCCR 181; 1993 SLT 438 where, in the same circumstances, police were held entitled to suspect that the caller was “involved with controlled drugs and therefore to search his person.  Guthrie v Hamilton is authority for that”.  Stuart takes the argument much further because, when the search of the caller’s person produced nothing, the police were held still entitled on the basis of the same suspicion to obtain a warrant to search his dwelling house and, when that too was negative, a further warrant to search other premises under his control.  From which it appears that a caller at those premises in turn, during the search, might arouse the same suspicion, be required to submit to detention and search and, when that was unproductive, have his house searched under warrant.

Information

In Weir v Jessop 1991 SCCR 242 police received anonymous information that a person on the fourth landing of a block of flats was involved in the misuse of drugs.  They went there and found only one person, namely the appellant.  The report does not, of course, say what the result would have been had there been no other evidence.  But there was.  The accused denied that he was involved in using drugs but “volunteered that he had been involved with drugs in the past”.  That was held to justify the search.

Similarly, a denial can be in itself grounds of suspicion, depending on its terms: “A search was already being conducted, under warrant, of premises which were thought to be associated with drug dealing.  The significance of the remark made by the appellant in response to the question put to him by the police officer was that it confirmed that he was in some way associated with dealing in drugs.  But the officers were not bound to accept every word that he said.  It was enough for them that he had admitted that he was in some way connected with dealing in drugs.  They were entitled to conclude that he might have some drugs in his possession as a result of this and that was a sufficient basis for them to form the reasonable suspicion which would entitle them to search him”.  Gavin v Normand 1995 SCCR 209 per Lord Justice-General at p.211F.

In 1992 and 1996 two cases seem to represent a shift in the Appeal Court’s view of what can pass for reasonable grounds to suspect.  The circumstances of Campbell v H.M. Advocate 1992 SCCR 35 were an action replay of Lucas v Lockhart except that the reason for the stopping of the car was information relating to the driver and one passenger.  There proved to be a third person in the car and:

“When the vehicle was stopped by the police with the prior knowledge which they had and the vehicle was found to contain not merely the two men whose names the police officers already had but a third party, namely the appellant, we are satisfied that in the circumstances the police officers were entitled to conclude reasonably that that person, namely the third party, was in possession of drugs and that therefore they had authority to search him and to detain him for the purpose of searching him.”  Per Lord Justice-Clerk at p.39.

As if to place such searches on an approved footing, the opinion of the Court in Cooper v Buchanan 1996 SCCR 448 was as follows:

“The power to search the vehicle extended to things found within the vehicle and to persons travelling in the same vehicle with the suspect at the time when it was stopped.  The crucial point in this case, which distinguishes it from Lucas and makes it similar to Campbell is that it was information relating to the presence of Banner travelling within a vehicle in possession of drugs which led the police to stop the vehicle in the first place.  It was this information which entitled the police to search both the vehicle in which he was suspected of travelling in possession of controlled drugs and the appellant who was travelling as a passenger”.  Per Lord Justice-General at p.451D.

But thus to extend the power to search the vehicle to include persons is a gloss on the statute.  By subsection (3), a warrant to search premises expressly adds “and any persons found therein” who thus lose the protection of “reasonable grounds to suspect”, or at least all but one of such persons may do so.  The power to search a vehicle or vessel under subsection (2)(b) has, by contrast, no such extension.  On the contrary even the person in control of it comes into the subsection only to the extent that he may be required to stop it.  For a search of him, her or them (passengers) there must be reasonable grounds, by subsection (2)(a).

Whether the requirements have recently been still further relaxed may be a matter of interpretation.  In Stark v Brown 1997 SCCR 382:

“The Sheriff was entitled, in the first place, to have regard to the evidence that the close at 31 Sunnylaw Street was known as a place where drug addicts and drug dealers congregate.  Secondly, there was evidence of the strange behaviour of the appellant, first coming quickly into the close and then stopping and freezing when he saw the police officers and turned his back to them.  Thirdly there was the vague explanation given by the appellant that he was looking for a bird but without giving any further detail about the lady.  When these various factors are put together and taken in combination we are satisfied that the police officers did indeed have reasonable grounds in terms of section 23(2) to suspect that the appellant was in possession of a controlled drug.”  Per Lord Justice-General at p.384A.

In Barr v Normand 1997 SCCR 511, the time at which the police officers giving evidence of reasonable grounds were required to justify their actings was put back from the moment of first speaking to the accused, the report not revealing what their grounds were then, to the time after he ran away and they caught him.  By then he had put something in his mouth and the court’s opinion was based on all the circumstances known to the officers “at that time, which included everything that had occurred by that stage”.  Taking that view, the court held that:

“The fact that the appellant ran away and put something in his mouth puts the matter beyond argument.”

A recent case reported only in Greens Weekly Digest is instructive as to the mundane circumstances and relatively unremarkable behaviour which can constitute reasonable grounds to suspect, and may be a highwater-mark:

Agitated

“Held, on B’s appeal against conviction for possession of cannabis resin found on his person after a police search, where officers had initially stopped B because his bicycle was not displaying lights but when B was extremely anxious and agitated and indicated he did not wish to be stopped or speak to the police, one officer discovered by means of a radio check that B had two previous convictions for drugs offences, that B’s reaction to the police coupled with knowledge of B’s previous convictions provided the officers with reasonable grounds to suspect that B was in possession of controlled drugs and the search was therefore lawful.” Bett v Lees 1998 GWD 28-140T.  The second part of this article will be concerned with searches carried out on the authority of warrants granted under Section 23(3).

Keith S. Bovey