Kuwait Court of Cassation principle number 106

Summary: - An investigatory stop. Its nature. An act permissible for a police officer. Its limits. Article 52 of the Criminal Procedure and Trials Law. - A police officer may arrest anyone driving a motor vehicle under the influence of alcoholic beverages, narcotics or psychotropic substances, or attempting to flee when ordered to stop. Articles 38 and 44 of Decree-Law No. 67 of 1976 concerning Traffic. - A police officer has the right to conduct a search in the case of a flagrante delicto offence. Article 56 of the Criminal Procedure and Trials Law. - The nature of a flagrante delicto offence. - Assessment of the grounds for an investigatory stop and a flagrante delicto offence. A matter of fact. - Where the arrest is valid, the search that follows it and is necessitated by the circumstances of the case is valid. - A police officer observing the appellant stopped in a vehicle in an unpaved open area late at night, stopping him for inquiry and discovering that he was in an abnormal condition under the influence of a substance affecting his natural faculties, then arresting him when he fled in the vehicle after being ordered to stop and failing to comply, thereby establishing a flagrante delicto offence and entitling the officer to arrest him and search him and his vehicle. A search necessitated by the circumstances of the incident. Correct application of the law. The challenge thereto is unfounded. Rule: An investigatory stop is a measure undertaken by a public authority officer to investigate offences and identify their perpetrators, justified by suspicion warranted by the circumstances. It is permissible for a public authority officer where a person voluntarily and freely places himself in a position of suspicion and doubt, and that position indicates a necessity requiring the intervention of the officer making the stop to investigate and ascertain its true nature, pursuant to Article 52 of the Criminal Procedure and Trials Law. It is established, pursuant to Article 44/1 of Decree-Law No. 67 of 1976 concerning Traffic, as amended by Law No. 52 of 2001, that any police officer may arrest anyone driving a motor vehicle under the influence of alcoholic beverages, narcotics or psychotropic substances. This falls among the misdemeanours criminalised by Article 38 of the same Law, which punishes any person who drives or attempts to drive a vehicle while under the influence of intoxicating beverages, narcotics, psychotropic substances or any other substances affecting a person's natural faculties. Likewise, under the fourth paragraph of the aforementioned Article 44, any police officer may arrest anyone who attempts to flee when ordered by police officers to stop. It is also established, pursuant to Article 56 of the Criminal Procedure and Trials Law, that a police officer may arrest and search the accused in the case of a flagrante delicto offence, and that an offence is considered flagrante delicto if committed in the presence of a police officer or if he arrives at the place of its commission within a short interval and its traces and consequences still conclusively indicate its recent occurrence. Determining whether grounds for an investigatory stop exist or are absent, and whether a flagrante delicto offence exists or does not exist, are matters of fact within the exclusive determination of the trial court, without review, provided that it bases its determination on sound reasons. It is established that, so long as the arrest is valid, the search that follows it and is necessitated by the circumstances of the case is valid. It is apparent from the first-instance judgment, upheld for its reasons and supplemented and varied by the challenged judgment, that, in its statement of the facts of the case and the substance of the previously mentioned evidence, it established grounds for stopping the appellant after the officer involved in the incident observed him standing with his vehicle in an unpaved open area late at night. The officer stopped him to investigate his situation and found that he was in an abnormal condition under the influence of a substance affecting his natural faculties. He did not arrest him until he saw him flee in his vehicle and after issuing an order to stop, yet he continued driving the vehicle under the influence of a substance affecting his natural faculties, which is the offence punishable under Article 38 of the Traffic Law previously mentioned. The offence was thus flagrante delicto, authorising the police officer to arrest the appellant without permission from the investigating authority pursuant to Article 44/1-4 of the aforementioned Law. Accordingly, the officer's arrest of the appellant and search of him and his vehicle for the substance he had consumed and under whose influence he was, being a search necessitated by the circumstances of the incident and involving no violation of the law, and the subsequent measures taken against him, are valid. Since the challenged judgment reached the same conclusion in responding to the appellant's plea in this regard and consequently rejected it, the appellant's contention in this respect is unfounded.