Kuwait Court of Cassation principle number 102

Summary: - The officer involved in the incident lawfully arrested the appellant and conducted a protective search of him. Finding nothing on him requiring a further search of his private car. This requires limiting the search to that extent and taking him to the police station to hand him over to the competent enforcement authority, or referring the matter to the investigator, if he finds it necessary to search his car, to authorize him to conduct it. The policeman’s proceeding to search the accused’s private car. An invalid search. The reason therefor. Its having been conducted without a legal basis. Consequently, the resulting discovery of the narcotic and psychotropic substance in the car is invalid. - The rule is that what is founded on an invalid act is invalid, and the invalidity extends to the evidence derived from this procedure, and the testimony of the person who conducted it is disregarded. The challenged judgment’s departure from this view. An error in applying the law and defective reasoning requiring its cassation. Rule: It is established from the papers and the challenged judgment that Police First Lieutenant ............, after lawfully arresting the accused—the appellant—and conducting a protective search of him, found nothing on him or anything requiring him to proceed with a search of the accused’s private car through his accompanying police sergeant ................ . This required him to limit the search to that extent and take him to the competent police station to hand him over to the competent enforcement authority, or refer the matter to the investigator if he found it necessary to search the car, so that the investigator could authorize him to conduct it. However, since the policeman nevertheless proceeded to search the private car of the accused appellant without this being required by the circumstances of the incident or obtaining authorization from the investigator, this search was invalid because it was conducted without a legal basis. Consequently, the resulting discovery in the car of the sealed exhibit containing the narcotic and psychotropic substance is also invalid. For it is established that, although the general rule is that whenever an arrest is lawful, the search that follows it is lawful, the limit and condition of that rule—as established by the jurisprudence of this Court, the Court of Cassation—is that there must be a reason for the search and that the circumstances of the incident require it. The search of the appellant’s car after his arrest for violating the Traffic Law in the foregoing manner did not aim to seek evidence of the commission of that offence, but rather to search for another offence unrelated to it, namely possession of narcotics. It was therefore an improper procedure not justified by his arrest for committing a misdemeanour in violation of the provisions of the Traffic Law and its Implementing Regulations or by the existence of an arrest order approved by the Civil Enforcement Department. That being so, and since the rule of law is that what is founded on an invalid act is invalid, this invalidity extends to the evidence derived from this procedure, represented by the statements of the two policemen who conducted it, and their testimony concerning the invalid procedures they conducted is disregarded. Since the challenged judgment—contrary to the foregoing—justified the procedures of arresting the appellant, searching him and searching his car, and then relied in its conviction upon the testimony of the two policemen and the findings of the forensic evidence report concerning examination of the seized items, it is vitiated by an error in applying the law and defective reasoning, requiring its cassation without any need to examine the remaining grounds of appeal.