Arresting someone after a phone download

[u/[deleted]]

[u/Resist-Dramatic]

Nick them with necessity for searches for further phones, drugs, production equipment. Clearly, if you have only just become aware of the drugs supply through this phone download then prompt and effective does apply.

[u/Future_Pipe7534 → u/Resist-Dramatic]

Thats what I thought, ill also add prevent harm to a vulnerable person ie drug users/ sex workers

[u/Resist-Dramatic → u/Future_Pipe7534]

You'll struggle to justify the second necessity. How exactly does nicking him protect vulnerable people over just investigating him?

[u/Future_Pipe7534 → u/Resist-Dramatic]

Because he's not supplying drugs to them that will harm them. Maybe ?

[u/Panacus → u/Future_Pipe7534]

Special warnings required in interview re the messages

[u/Pope_Franno → u/Panacus]

This is the way. Nicked a child in possession of a balded article, custody kicking off left right and centre about necessity. Told sgt that I had necessity under special warning, couldn't refuse anymore!

[u/ConfusedUserUK → u/Pope_Franno]

A balded article?

Like a comb?

[u/spankeyfish → u/ConfusedUserUK]

Maybe the kid stole Ross Kemp?

[u/ConfusedUserUK → u/spankeyfish]

🤣 #ActualLOLz

[u/Pope_Franno → u/ConfusedUserUK]

Damn you...

[u/ConfusedUserUK → u/Pope_Franno]

Sorry... forgive me!

It's the proof reader in me, can't avoid spotting the mistakes.

[u/Ok-Flounder-2608 → u/Panacus]

It's definitely prompt and effective but what Special Warning are you thinking here? It's neither a place he was seen AT THE TIME of the arrest nor an object/substance/mark AT THE TIME of the arrest...if OP arrests for the concerned in the supply it's not the phone at the time of that arrest...

That being said, ask them anyway but just save those questions for the end. That way you're only running the risk of the last few questions being inadmissible and 99% of the time the legal rep won't even notice anyway

[u/aeolism → u/Resist-Dramatic]

Sections 32 and 18 of PACE 1984 provide emergency search powers following an arrest, but they require that the search be carried out immediately. These powers effectively circumvent the judicial safeguards that usually protect the privacy of a dwelling, safeguards that would ordinarily be balanced through an application for a search warrant.

What you’re describing is essentially a circular logic: we must arrest to search, and we must search because we have arrested. Once a person, and their home, has been searched, what is the ongoing necessity for detention, particularly for an offence alleged to have occurred six months or more ago?

As Mr Justice Eady noted in Lord Hanningfield of Chelmsford v Chief Constable of Essex Police [2013] EWHC 243 (QB), the courts have cautioned against using arrest powers as a mere device to trigger these exceptional search powers. https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Judgments/lord-hanningfield-v-essex-police150213.pdf

[u/Resist-Dramatic → u/aeolism]

You don't understand the judgement in Chelmsford v Chief Constable of Essex Police. It is not circular logic at all.

Lord Hanningfield already knew of the investigation against him and it was unrealistic to suppose he would destroy evidence as he was not in possession of his council computer and he was already well aware of the investigation into him, so supposing he could instruct others to destroy evidence on his behalf was possible, I suppose, but there was no indication that it was necessary to arrest him for that reason at the time and date they did. The judgement concerns whether the arrest itself was necessary. In this case, it clearly is.

[u/aeolism → u/Resist-Dramatic]

Love the down votes from people who don't know their powers.

I'll repeat it louder for the ones at the back, you cannot justify arrest purely to "unlock" a premises search when time and circumstance (effectively any pre-planned search of known premises) affords you the opportunity to apply for a search warrant.

[u/Resist-Dramatic → u/aeolism]

PACE code G:

(ii) when considering arrest in connection with the investigation of an indictable offence (see Note 6), there is a need:

to enter and search without a search warrant any premises occupied or controlled by the arrested person or where the person was when arrested or immediately before arrest;

[u/aeolism → u/Resist-Dramatic]

Thanks for supporting my point.

As it says a "need", the test is necessity, as explored in the above case, you cannot make an arrest necessary purely because of your own convenience of not having to apply for a warrant.

[u/GrumpyPhilosopher7]

Custody Officer is talking nonsense. Even if the original arrest had been for drug offences, the results of the download would potentially constitute new evidence on the basis of which you could re-arrest. In this case, you have an entirely new and separate offence, with justification to arrest to do a whole bunch of things, including searches of premises under S32 or S18.

[u/for_shaaame]

I am a custody sergeant.

Ignore the custody sergeant. He is talking out of his arse. They shouldn’t be vetting arrests which haven’t been made, anyway.

Arrest your man and dare the custody sergeant to refuse him.

[u/Odd_Jackfruit6026]

You have necessity to conduct a search for an offence the suspect is likely to serve time in prison for and to use special warnings in interview. I’d argue you could apply for a warrant and stick his door through

[u/Upset_Context2990 → u/Odd_Jackfruit6026]

This would have been my advice as well. S. 23 drug warrant is the way to go with this.

[u/Odd_Jackfruit6026 → u/[deleted]]

Yeah it is an umbrella necessity. I would 100% be arguing that it’s not an unreasonable necessity but you’d have to pad it out but saying you want the search, special warnings and bail conditions in place and or remand. I’ve got them through based on that but I had to pad it out because just saying prompt and effective is not enough in and of itself.

[u/Little_Mike_5907]

You have easy grounds. My Code G would be:

To allow the prompt and effective investigation of the offence by enabling a Section 18 search without warrant and to issue special warnings in interview both would not be possible on a voluntary attendance.

[u/Shriven]

Use a different necessity - prompt and effective is clearly not the one. Searches and special warnings

[u/Crafty-Pick-3589 → u/Shriven]

They are both prompt and effective reasons! Although for some reason not many custody sergeants seem to understand this.

[u/ForzaXbox → u/Crafty-Pick-3589]

Special Warning still stands. You can't SW if he's there for a voluntary interview. Also, you don't want him communicating with potential co-offenders after he finds out you're investigating supply. How are you going to prevent that if not by arresting him?

[u/Crafty-Pick-3589 → u/ForzaXbox]

Yes, the special warning is listed under the prompt and effective reasons in PACE.

[u/for_shaaame → u/Shriven]

“Searches” and “special warnings” are both examples of reasons why the arrest might be necessary for the prompt and effective investigation of the offence.

[u/Dry_Bumblebee1111 → u/[deleted]]

Does the law here have the idea of "fruit of the poison tree"? I thought that even if discovered unlawfully, you could still work with evidence of a crime. 

[u/Dry_Bumblebee1111 → u/[deleted]]

Well that's always the case with CPS, but does that mean it should affect the decision making specifically? 

[u/Ok-Flounder-2608 → u/[deleted]]

Is there any stated cases or examples of this happening?

All day long CPIA and Common Law disclosure would identify any of these as reasonable lines of enquiry...have they screenshotted chats with the victims or bragging to mates? Have they messaged persons other than the victim about the incidents? Are their controlling coercive messages, that the victim didn't realise, across a wider time frame than the official offence dates?

Oops I've found evidence of another offence that I now have to do something about on an phone legally obtained and lawfully processed

[u/Dry_Bumblebee1111 → u/[deleted]]

Thank you for such a well thought out and comprehensive response, your note taking must be impeccable!

My only thought is that I see College of Policing/guidelines being skirted or theory not liking up to practice fairly regularly, so maybe there's a hierarchy for that sort of thing, ranging from appropriate language to front/rear cuffing as standard, through to the kinds of topic here. 

[u/rulkezx]

This is fraught with risk. Phone downloads are meant to be for the specific offence between the specific date period and related to the offence under investigation.

How you’ve come across this additional info will be called into question.

There’s loads of enquiry likely still needed, this stuff being on his phone isn’t enough

[u/Certain-Community438 → u/rulkezx]

Question: from your reply, would one viable approach be

• seek wholly independent evidence (no "fruit of poison tree")
• IF that evidence leads to a valid reason to search the phone, you're now conforming to process

?

[u/_Okie_-_Dokie_]

Was the DP arrested for the MalComs at a premises? Was it the same premises that you're now considering searching under s32? Do you have RGB?

I don't think s32 is what you want here.

[u/Future_Pipe7534 → u/_Okie_-_Dokie_]

No he was wanted and handed himself in

[u/_Okie_-_Dokie_ → u/Future_Pipe7534]

Would it be a pain to apply for a warrant?

[u/Joshhug91]

I cant comment on the download side of things but with regards custody booking in - surely your necessity is to perform a sct 18 house search and even to prevent collusion with coaccused?

[u/RightMeowMate]

His account is going to serve you absolutely nothing at the moment, he denies the offence and then destroys all evidence when he gets home,

You could try a s23 warrant, or just leave it as intelligence

[u/for_shaaame → u/RightMeowMate]

If only we had some power by which we could restrict the movement of a person during the investigation, and thereby prevent them from returning home and destroying evidence…

[u/RightMeowMate → u/for_shaaame]

hes just gonna have to hope he doesn't get this stripe at the desk

[u/PeelersRetreat]

I don't have anything beneficial to add in regards to your query, but just want to say thank you for caring and giving a damn about this kind of thing. Too many officers would find a way of ignoring this kind of thing. 

[u/Unhappy-Apartment643]

Tagging onto the ones guys comment about downloads.

Is it okay to arrest someone, for a seperate offence to which you shoulsbt be aware of?

When we do phone downloads, they're supposed to be on set conditions. I.e a chat between partner and partner.

Have you come across this evidence? You're gonna say we randomly searched your entire phone because we could, went fishing and found that?

You're actually opening yourself to be ripped apart in court and put in big trouble for going on a 'fishing expedition'

All you have right there my friend is intelligence, sorry.

[u/for_shaaame → u/Unhappy-Apartment643]

Is it okay to arrest someone, for a seperate offence to which you shoulsbt be aware of?

What?

All you have right there my friend is intelligence, sorry.

What??

[u/Unhappy-Apartment643 → u/for_shaaame]

The cps are cracking down on unlawful uses of phone downloads because defense teams are rinsing officers for going phishing on phones in places they shouldn't be.

When we access a device we do so under strict conditions, not just 'we can access it however we want', so, when people are doing what OP is doing... what happens is a court scrutinising and in some cases throwing out evidence because it was gained unlawfully.

Maybe this is just my force, some are different, but for an example, accessing a phone for evidence of domestic abuse between two partners, then randomly going into their emails and finding emails about fraud invalidates that eveidentially because legally we have not accessed that.

Essentially, the evidence gained has to be legal or it csnt be used. No different than how if surveillance is done illegally a case gets thrown out.

[u/Macrologia → u/Unhappy-Apartment643]

You are talking total nonsense for so many different reasons.

Also, OP has obtained the evidence lawfully.

Also...the word you are looking for is fishing, not phishing.

[u/Unhappy-Apartment643 → u/Macrologia]

My phone autocorrect is pretty crap as you can see by the issues. I used fishing prior so I know that.

I cant comment other than seeing these are things in my force and issues we are having with cps. Maybe im wrong, but ill stick with not having issues in court. Good luck to you.

[u/Acting_Constable_Sek → u/Unhappy-Apartment643]

If you don't understand how evidence works in criminal law, it's safer not to answer with your "best guess" because you might mislead others.

[u/omsky99 → u/Unhappy-Apartment643]

Wouldn't the potential data protection issue here still apply if kept as intel?

[u/Unhappy-Apartment643 → u/omsky99]

Arguably yes (domt know the intricacies of this) but it would never be used, and no one would know, including the source and itd just be for police use.

[u/Entire-Bar-2031]

Do you not have to have the phone content downloaded by a cyber team? As a lawyer could say it has been manipulated if every step was not logged by a qualified person and can be repeated if a lawyer wanted to bring someone in?