Kuwait Court of Cassation principle number 107

Summary: - An investigative stop is a measure taken by a police officer to investigate crimes and identify their perpetrators. Its condition. Article 52 of the Code of Criminal Procedure and Trials. - A police officer may arrest accused persons without a warrant so long as the misdemeanour or felony is flagrante delicto. - The nature of an offence in flagrante delicto. Assessment of its existence is a matter of fact. Its condition. - Driving a motor vehicle without the necessary lights illuminated is a misdemeanour criminalized by Article 36/6 of Decree-Law No. 67 of 1976 concerning Traffic, as amended. A police officer may stop its driver and issue a violation notice. The driver’s throwing away a transparent bag, voluntarily abandoning it of his own will, and the police officer’s picking it up and discovering psychotropic substances inside permit him to search the driver and his car without authorization and refer him to the General Department of Forensic Evidence to take and analyse a urine sample. A complaint against this is incorrect. Rule: It is established that an investigative stop is a measure taken by a police officer to investigate crimes and identify their perpetrators, justified by suspicion warranted by the circumstances. It is permissible for a police officer where a person voluntarily and of his own choice places himself in a position of suspicion and doubt, and that position indicates a necessity requiring the stopping officer’s intervention to investigate him and ascertain the truth of his situation, pursuant to Article 52 of the Code of Criminal Procedure and Trials. That being so, it is established under Articles 43 and 56 of the Code of Criminal Procedure and Trials that a police officer may arrest without a warrant persons accused of committing misdemeanours and felonies in flagrante delicto. It suffices for flagrante delicto that there be external manifestations perceived by the police officer through one of his senses which themselves indicate the occurrence of the act constituting the offence. Assessment of the circumstances surrounding the offence and whether it was flagrante delicto is exclusively for the court of merits without further review, provided its ruling rests on sound grounds. The reasoning of the first-instance judgment, adopted and supplemented by the challenged judgment, addressed the appellant’s plea that his arrest and search were invalid for lack of flagrante delicto, and rejected it on the basis of its satisfaction that grounds for stopping him existed initially after the police officer saw the car occupied by the appellant travelling at night without the necessary lights illuminated. That act constitutes the misdemeanour punishable under Article 36/6 of Decree-Law No. 67 of 1976 concerning Traffic, as amended by Law No. 52 of 2001, entitling the police officer to stop him and issue a violation notice. The officer noticed that the appellant was in an abnormal condition and asked him to leave the vehicle. While doing so, the latter threw away a transparent bag, voluntarily abandoning it of his own will and choice. The police officer picked it up after it fell to the ground and did not arrest him until he had opened the bag and discovered a psychotropic substance inside. This voluntary abandonment and the police officer’s observation of the seized items established flagrante delicto, permitting him to arrest and search the appellant without an order from the Public Prosecution. Accordingly, the procedures of stopping and arresting the appellant, searching his person and car, and referring him to the General Department of Forensic Evidence to take and analyse a urine sample were valid, and the resulting evidence may properly be relied upon. Since the judgment reached the same conclusion in answering the appellant’s plea in this regard, on which basis it rejected it, the complaint against it in this respect is unsound.