The recent death of a Cape Town man in police custody has raised alarm within the Cape Town community about ‘stop-and-search’ police operations. Last week, Nadeem Khan died in police custody after police accused him of being in possession of a stolen cell-phone.

Khan was arrested outside a local mall in Rondebosch East where he was meeting a friend who intended to purchase a cell-phone. During the incident, Khan called his mother to inform her that he had misplaced his vehicles keys. While on the phone with his mother, two police officers approached him and told him to hand over the phone, to which he replied that it is in fact his phone – this was the last time his mother had spoken to her son.

According to Khan’s brother, Dr. Amien Khan, the first they saw of Khans body was when the family were directed to a cornered-off area, in which Khan’s body lay at the back of a police van.

While ‘stop-and-frisk’ is commonly used by New York police, in South African police often use stop and search measures on suspicious criminals.

In terms of the Criminal Procedure Act, a police officer may without a warrant, search an arrested person and seize any article found in the arrestee’s possession, custody or control, which may afford evidence of the commission of an offence.

Dr Simon Howell from the Centre of Criminology at the University of Cape Town, explains that in the event that an individual is arrested by police, the individual needs to remain calm as the situation escalates, but to ensure that the right to be informed in a language that the individual understands about why they are being detained is being met by police officers.

Upon arrival at the police station, he says that individuals need to request to speak to the commanding officer and explain their side of things.

“When you are arrested you have a right to be informed why you are being arrested and if they neglect to inform you then they are not doing their job properly. But the best thing to do is try not to escalate the situation and antagonise police,” he stated.

In the case of Khan, Howell notes that if he only had a single cell-phone on his person and intended to sell it, it would not be reasonable cause for arrest, unless there was prior information that would suggest that the cell-phone was already stolen.

“If the person had multiple cell-phones on them and trying to sell them in an informal manner and could not explain where they came from, then that would not be reasonable suspicion.”

He, however, asserts that while an individual may be detained, even in the event that the officer has reasonable cause for suspicion, the detainee should not be ill-treated.

With regard to random stop and search incidents, Howell says that police would require probable cause and provide a good justification for why they believe that an individual has committed theft.

“You may think that you are being targeted, but in their mind they may have probable cause. That is why you have to ask why they feel that they are justified and you should be granted an opportunity to provide a narrative as to why you have not stolen something,” he explained.

Howell further notes that stop and search operations may occur in roadblocks, where there are two forms of road blocks; one that has been granted a search warrant and an ad hoc roadblock.

“In the big formal roadblocks you may ask to see the search warrant, but they may ultimately search your vehicle,” he added.

In terms of ad hoc roadblocks, he says that if officers believe that there is probable cause that there is something illegal either on an occupant of a vehicle or the vehicle itself, then “so long as they can provide a justification,” they may search the vehicle.

“But in those incidents they may have to apply for a search warrant after the fact. But, if they can’t justify the search, the person who was searched could respond legally through litigation,” Howell continued.

He encourages individuals to keep a number of a trusted individual on their cell-phones and mark the number as ICE (in case of emergency) in the event that the phone is removed.

VOC