Is the PDRM allowed to search your body without a warrant?3 months ago
Imagine this scenario – you are driving along merrily with your friends, out for some late night McNuggets. Suddenly, you see flashing lights up the road. It’s a police roadblock and you obligingly slow down your car. You expect the abang police to wave you through but to your surprise, he gestures for you to pull over. You manoeuvre your car over to the shoulder of the road and wind down your window.
The police then asks you and your friends to get down from the car. Confused, you hesitate and ask him why. He tells you that he wants to conduct a body search on you and your friends but this leads to 4 questions:
- Can the PDRM actually do that?
- Your girlfriend is in the car as well, can male officers conduct a body search on females?
- Can the PDRM do it there and then?
- Do they need a warrant?
First things first is…
The PDRM can conduct body searches
Under section 20 of the Criminal Procedure Code (“CPC”), the police are allowed to search you if you have been arrested. You can read more about how arrests happen in Malaysia here but we know what you are thinking; police searches at roadblocks always happen even if you are not arrested. Well, you think that you are not arrested but technically, the moment the officer touches or confines your body, an arrest has been made.
To illustrate this point further, let’s use a common scenario:
Ali is stopped at a police roadblock.
Ali is asked to get down and the police conducts a body search.
In that time, Ali cannot run away and is technically arrested.
[READ MORE: How do I know if I am getting arrested by the PDRM?]
Aside from that, even if you are just in a place which is being searched under a police warrant, you can be searched as well if the police think that the thing they are looking for is hidden on your body. This is found in section 17 which allows the police to lawfully detain you until the search is completed.
We know that this concept might be hard to grasp as it hinges a lot on technicalities and both the arrest and search happening simultaneously but the straight answer is, the PDRM are allowed to conduct body searches. While sections 17 and 20 only tells us that the police can conduct body searches, the procedure on how to conduct body searches in found in the Fourth Schedule of the CPC.
While the PDRM don’t need warrants to search you, anything above a pat down search requires authorisations from ranking police officers. We will explain this in further detail below.
Aside from the necessity of getting arrested before a search can be conducted, the Fourth Schedule also lays down some extra rules…
The search must be done with certain objectives in mind
Part 1 of the Fourth Schedule tells us that a body search can be conducted only if it complies with any of the following objectives:
- To obtain evidence of the offence that you were arrested for
- To seize contraband or things used in relation for the offence that you were arrested for
- To discover/preserve/prevent disposal of any such evidence
Aside from having these objectives in mind, Part 2 of the Fourth Schedule also lays down the general conduct which the police officer conducting the search must have while searching your body. There are 9 things for the officer to bear in mind and you can check out the full list on your own but the gist of it is that the officer must have utmost respect for your dignity while conducting the search and have respect to, among other things, your religious and cultural sensitivities and any disabilities you may have.
Section 19(2) CPC also tells us that if you are a woman, your body search must be conducted by another woman with strict regard to your decency.
If you are thinking, okay, that doesn’t sound too bad because all the police is doing is a normal pat down search. However, there is one interesting point to note…
There are 4 kinds of body searches that the police can conduct
You can technically look at these 4 different kinds of body searches as the beginner, intermediate, expert, and master sifu searches because they uh...increase in intrusiveness as they go on. Without further ado, let’s take a look at the 4 different kinds of searches and the additional rules that they have.
While there are 4 kinds of searches, there is common procedural aspect that is shared by all of them. At the end of each search, the police officer must prepare a list of things taken from your during the search. You must sign this list and receive a copy of it.
Aside from that, these searches can be conducted if there is reasonable suspicion that you are concealing a weapon/evidence/contraband whether at the time of arrest of before entering the lock-up/detention centre.
A pat down search is the one that most of us would be familiar with. It’s where the officer quickly searches your outer layer of clothes by running his hands over your clothes. There is no authorisation required for a pat down search. This means that technically, any officer of any rank can carry it out.
There are 12 procedures that a police officer has to comply with when conducting a body search on you and you read up on the long list yourself but here are some interesting tidbits we picked up:
- The police officer is not allowed to touch your genitals but he may run his hands over your buttocks and under your breasts
- The police officer must start off the search by asking you to declare if you have any unlawful/harmful item on you
- The police officer must ask you to turn out your pockets and empty them
A strip search is where there is removal of some or all of your clothing during the search. However, you cannot be completely naked at any time of the search. The police officer must allow you to dress your upper body before requesting you to remove the clothes on your lower body. A strip search cannot be conducted without the authorisation of someone who is above the rank of an Inspector or if conducted by any other enforcement agency, by someone in the rank equivalent to that of an Inspector and above.
There are 14 procedures that the officer has to comply with during a strip search and as above, we made a shorter list of interesting tidbits for you:
- The search must be conducted in a private room with no recording devices and only you and the two officers are allowed in the room
- All the clothes you remove must be thoroughly inspected in your full view
- The officer is allowed to search your ears, nasal passage, and mouth
- If you are a female, you can be asked to lift and separate your breasts for an inspection from all sides, if you are obese, you may be asked to lift your skin for inspection
- The officer must have minimal contact with your genitals/intimate parts
An intimate search is where your body orifices (other than the mouth, nose, and ears) are searched. This means uh that your...anal and vaginal cavities. The same rule of not being completely naked applies and authorisation by a police officer not below the rank of Assistant Superintendent of Police must be given.
The most important aspect of the intimate search is the squat and cough procedure. This is where the officer will request for you to remove the clothes covering your bottom half and ask you to squat over a mirror and cough deeply not more than 10 times. The purpose of this is basically to see if you have inserted anything up your orifices and the squat and cough exercise is supposed to dislodge the item, if any.
If the squat and cough does dislodge an item from any of your orifices, the officer is not allowed to attempt any external intervention to help dislodge the item. Basically, he cannot reach over and pull the item out of you.
If the officer considers that you are incapable to do the squat due to health reasons or because you are pregnant, you don’t have to perform the squat. Aside from these additional requirements, the same rules which apply to a strip search apply here.
An intrusive search is well...as the name connotes, intrusive. It is done to examine your body to see if you have hidden anything inside your body or in any of your orifices. Unlike the intimate search, an intrusive search allows for the removal of the item from your body.
Authorisation must be given by the officer in charge of a Police District or his equivalent in any other enforcement agencies and the search can only be conducted by a Government Medical Officer or a Medical Officer. You must be brought to a hospital for the search to be conducted and during the search, you will be accompanied by a police officer of the same gender who will take any object which is recovered from your body.
So these are the 4 searches that can be conducted on you. If you can’t remember all the procedures and guidelines, one very important thing can help you…
The Red Book saves the day!
The Malaysian Bar has complied an easy guide for the rights you have if and when the police stops you and it comes in Malay and English. You can download them here. Basically, just know that you have the right to ask for the police’s identification and reasons why they are stopping you. Aside from that, if you ever require legal help but can’t afford it, Malaysia actually provides three different kinds of legal aid to assist you. You can read more about it here.
At the end of the day, always remember to keep your cool if you are stopped by the police and respond courteously but firmly.
Denise spends most days steeped in tea. Equipped with some legalese and the mantra of life - "Ich bin ein kartoffelsalat". Frequently referred to as "Dennis" despite the fervent belief that red and black stripes only look good on Freddy Kreuger.