Kuwait Court of Cassation principle number 103

Summary: - A police officer may arrest without authorization persons accused of misdemeanors witnessed in flagrante delicto. Basis. - When an offense is deemed witnessed in flagrante delicto. - A police officer's observation of the appellant committing the misdemeanor criminalized by Articles 35/13 and 36/4 of Decree-Law No. 67 of 1976 concerning Traffic, amended by Law No. 25 of 2001. Constitutes an offense witnessed in flagrante delicto. Effect: authorizes arrest without authorization. The appellant then voluntarily discarded (voluntary abandonment) a bag that aroused the police officer's suspicion. Upon searching it, psychotropic substances and consumption implements were found inside. An offense witnessed in flagrante delicto permitting arrest and search. Basis. The objection to the procedures undertaken is unfounded. Rule: It is established that, under Article 56 of the Code of Criminal Procedure and Trials, a police officer may arrest without authorization persons accused of misdemeanors witnessed in flagrante delicto. An offense is deemed witnessed in flagrante delicto if committed in the police officer's presence or if he arrives at the place of its commission shortly after it was committed and its traces and results still conclusively indicate its recent occurrence. The first-instance judgment, upheld on its reasons by the challenged judgment—as previously explained—established that the police officer saw the appellant driving his car and performing an act contrary to the Traffic Law, namely making a turn at a traffic light in a place where turning was prohibited. He stopped him and asked for his driving license, finding that he was not carrying it or proof of identity, and observed that the appellant was in an abnormal condition. This act constitutes the misdemeanor punishable under Articles 35/13 and 36/4 of Decree-Law No. 67 of 1976 concerning Traffic, amended by Law No. 52 of 2001. The offense was thus witnessed in flagrante delicto, authorizing the police officer to arrest the appellant without authorization from the investigating authority. The appellant subsequently voluntarily abandoned a small black bag by throwing it beneath the patrol car. The officer became suspicious of it, picked it up, and, upon searching it, found psychotropic substances and consumption implements inside. Thus, this administrative abandonment and the police officer's observation of the psychotropic substances and consumption implements contained in the bag established a state of flagrante delicto permitting him to arrest and search the appellant without an order from the Public Prosecution, pursuant to the right prescribed in Articles 43 and 56 of the Code of Criminal Procedure and Trials. Accordingly, the procedures of arresting the appellant, seizing the psychotropic substances he had abandoned, and searching his person by referring him through the Public Prosecution to the General Department of Criminal Evidence to take and analyze a urine sample were all valid procedures, and the evidence they produced may properly be relied upon to establish his commission of the charge against him. The challenged judgment reached the same conclusion in responding to the appellant's plea in this regard and rejected it. The appellant's contention in this respect is therefore unfounded.