Kuwait Court of Cassation principle number 109

Summary: - A police officer has the right to conduct a protective search. Its rationale and condition: that it be warranted and necessitated by the circumstances of the incident, without abuse in its execution and with adherence to its limits. - Adherence to or exceeding the limits of the search. A factual matter arising from the circumstances of the case. - The court’s doubt as to the correctness of attributing the charge to the accused suffices for acquittal. - The challenged judgment’s conclusion that remnants and traces of a psychotropic substance in a very small quantity were found inside a bag in the pocket of the respondent’s clothing, which could not be reached without the police officer extending his hand inside the pocket rather than externally patting it down. Implication: the officer was not searching for weapons to disarm the respondent but was seeking another offense unrelated to the original offense; he exceeded the limits of a protective search and abused its execution; and discovery of the psychotropic substance was not incidental. Consequence: invalidity of the search, the evidence derived from it, and the procedures resulting from it. Rule: What the judgment stated was reasonable and sufficient to rule that the search was invalid and to acquit the respondent, and accorded with the correct application of the law. Although the officer could lawfully arrest the respondent with a view to taking him to the police station and could search him pursuant to Article 51 of the Trials and Criminal Procedure Law, because this is a means of precaution and protection against harm from the arrested person should he be tempted, in an attempt to escape, to assault another with a weapon or the like that he might possess, authorization of a search by the person making the arrest nevertheless requires that the search be warranted and necessitated by the circumstances of the incident. All this is to ensure that the judicial law-enforcement officer does not abuse the execution of any valid search he conducts, adheres to the limits of the search, and does not exceed its purpose. The respondent did not dispute the officer’s right to search him when taking him to the station, but argued that in executing that procedure he exceeded what it required. Determining whether the person conducting the search adhered to its limits or exceeded its purpose and abused its execution is a matter of fact, not law. Assessment of the purpose of the search is a matter for the trial court alone, which may infer it from the circumstances of the case and its circumstantial indications without review. It suffices for the trial court to doubt the correctness of attributing the charge to the accused in order to acquit him, provided it has examined the case with insight and understanding and its judgment is free of defects in reasoning. It is established that, after acquainting itself with the circumstances of the case and the evidence for the prosecution, the appellate court declared the respondent’s search invalid. The prosecution witness testified that the search resulted in seizure of the psychotropic substance, which the court found consisted of remnants and traces of a psychotropic substance in a very small quantity inside a bag in the pocket of the respondent’s clothing, which could not be reached without the police officer extending his hand inside the pocket rather than externally patting it down. It inferred from this that, in conducting that search, the officer was not looking for weapons to deprive the respondent of any weapon or objects he might carry that could help him escape, but was seeking another offense unrelated to the original offense for which the respondent had been apprehended. It found that the officer involved in the incident exceeded the limits of a protective search and abused its execution, and that discovery of the psychotropic substance was not incidental but resulted from an effort by the person conducting the search to seek the offense of possession of a psychotropic substance—as explained above. Since these reasons support the judgment’s consequent conclusions that the search, the evidence derived from it, and the subsequent procedures resulting from it were invalid, the appellant may not contest this.