Kuwait Court of Cassation principle number 104

Summary: - Assessment of the existence of a witnessed offence. A matter of fact. - A policeman has the right to arrest anyone committing the acts specified in Article 44/4 of Decree-Law No. 67 of 1976 concerning Traffic. This arrest may not authorize him to search the car. - The challenged judgment’s account of the incident was that the appellant was stopped in his vehicle late at night and the policeman attempted to stop him, but he fled. This justifies his arrest. The circumstances of the incident did not require a search of the car. It was an arbitrary, invalid procedure devoid of effect. - Observing the appellant in an abnormal condition or a foul odour emanating from his mouth does not establish a state of flagrante delicto. - What is founded on an invalid act is invalid. Invalidity extends to the evidence derived from this procedure. Conviction of the appellant on the basis of the resulting evidence. This vitiates it by defective reasoning and an error in applying the law, requiring its cassation. Rule: It is established that assessment of a witnessed offence is a matter for the trial court, which must adhere in its judgment to the facts established in the papers. Moreover, although a policeman, pursuant to Article 44/4 of Decree-Law No. 67 of 1976 concerning Traffic, has the right to arrest anyone who commits any of the acts specified in that Article, including failure to comply with an order to stop issued by policemen—as the challenged judgment held—this arrest does not authorize him to search the person’s car, since failure to respond to an order to stop does not in itself suggest that the accused has committed the offence of possessing and holding psychotropic substances or driving the vehicle under their influence. It is established from the challenged judgment’s account of the incident that, after the two policemen saw the appellant stopped in his vehicle late at night, they attempted to stop him to ascertain his situation, but he fled, drove his vehicle and did not respond to the police patrol’s call to stop. This is the misdemeanour punishable under Article 44/4 of the aforementioned Law, which justifies the policeman who witnessed this offence arresting the appellant. That being so, although it is established that whenever an arrest is lawful the search that follows it is lawful, the limit of that rule—as established by the jurisprudence of this Court, the Court of Cassation—is that the circumstances of the incident must require this search; otherwise, it is an arbitrary, invalid procedure devoid of effect. The account of the incident in this manner—although it permits the policeman initially to search the appellant to divest him of anything he might use to resist or to harm himself or others pursuant to Article 51/1 of the Code of Criminal Procedure and Trials, which the judgment did not recount in its statement of the facts of the case and the statements of the officer involved in the incident—does not permit the search of the appellant’s car. Nor is this justified by the policeman’s statement during the investigations that he noticed that the accused was in an abnormal condition and a foul odour emanated from him. Apart from the fact that the judgment did not recount that statement in its text when setting out the policeman’s statements, merely observing the appellant in an abnormal condition or a foul odour emanating from his mouth does not establish a state of flagrante delicto, particularly since the report of the General Department of Forensic Evidence analysing the blood sample taken from the appellant’s blood established that it was free of traces of ethyl or methyl alcohol. Consequently, the policeman’s search of the appellant’s car in this manner was invalid, which entails the invalidity of every procedure resulting from it, as well as the referral of the appellant to Forensic Evidence to take and analyse a urine sample, which is a form of search for narcotics or psychotropic substances, not for anything related to his arrest for disobeying the order to stop. 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 these procedures. Their testimony concerning the invalid procedures they conducted is therefore disregarded, and the evidence based upon the results of the two analyses of the seized items and the sample taken from the appellant’s urine is likewise excluded, because it derives from the search which was invalid and would not have existed but for the invalid search. This is particularly so since the appellant denied what was attributed to him, and the offence of the appellant’s driving a vehicle under the influence of psychotropic substances was established against him only on the basis of evidence derived from the search. Since the challenged judgment justified the procedures for searching the appellant and then relied, in convicting him, upon the resulting evidence and the statements of those who conducted it, it is vitiated by defective reasoning and an error in applying the law, requiring its cassation.