Criminal Law in Thailand Part 24: Search and Seizure - what you can do if it's wrong

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Dave The Dude

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Criminal Law in Thailand Part 24: Search and Seizure - what you can do if it's wrong

  • Published: 26/09/2010 at 12:00 AM
  • Newspaper section: Spectrum
We've talked about what the police can and can't do in connection with search and seizure. Now let's look at a fictitious example and see what you can do if your rights are violated because of a police search.

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ILLUSTRATION: NATTAYA SRISAWANG

Let's say you're at work. A policeman gets a tip from an informer that there is a massive amount of pirated software hidden in an apartment following a description of yours and, without further procedural niceties, gets together a team of colleagues. Together they pop over to your apartment. They knock on the door, but nobody answers, because you're still at work. After a little thought they break down the door and start searching.
Thinking the software might be hidden in your collection of antiques, the police break it up, every stick, destroying statues from the Sukothai era worth two million baht. They then see the computer, a nice one that you just purchased for 100,000 baht.
About this time you get home and see everything in your apartment has been wrecked and that the police are still at work. Several of your neighbours have also appeared at your door because of the noise of the destruction. One of them, who happens to be a Thai lawyer, stops a police officer who is carting your new computer out the door and demands to know what's going on. He's told to mind his own business and that he'll be arrested if he causes any trouble. Nevertheless, the lawyer insists on getting the officer's ID number.
Then the police leave, with your computer and a couple of ya ba pills they found in a vial under a pillow in your bedroom. Your place is in shambles.
Well, it's obvious that just about everything about this search and seizure was illegal. If you've read our columns over the last couple of weeks, you'll know the police would have needed a warrant for a search like this, because it didn't fall into one of the exceptions that allow a warrant to be unnecessary. They didn't have a warrant or witnesses, they caused excessive destruction and they didn't make signed records of the items confiscated.
What can you do?
First, you have options discussed earlier in connection with other types of police impropriety. You can:
Make a claim against the Royal Thai Police for damages under the Act on Liability for Wrongful Acts of Officials. You could do this either administratively by filing a claim with the Royal Thai Police Office or by suing the Royal Thai Police. You could claim money damages for the destruction of your property and/or the return of your computer.
Request that the police officers who conducted the search be disciplined pursuant to police internal regulations. There are several ways to do this, discussed in earlier columns, but the obvious one is sending a letter to the Office of the Inspector General, Building 1, Floor 1, Royal Thai Police Office, Wang Mai sub-district, Pathumwan district, Bangkok. You may send the letter in English, not Thai, but this will result in some delay, because the letter has to be translated to Thai before it can be responded to.
There are a couple of issues in this situation that are unique to the law of search and seizure. You could make a motion to get your computer back, even if the police are considering using it as evidence. The motion could be made through your lawyer to the police or to the Public Prosecutor, depending on who has custody. You can also make the motion on your own. You may have to post a bond or security.
What about the ya ba? First, you can't petition the police to get it back as you can with your computer. This can't be done with items that are illegal in themselves, such as contraband drugs.
But may you be tried for the possession of an illegal drug? Probably not, because the police just stumbled across it in the course of a search that was itself illegal.
This is not an absolute rule, however. If a prosecutor decided to prosecute for the drug, a judge would have discretion on whether to admit such evidence against you. We will discuss how this discretion is exercised in a later column.
Also, the fact that the ya ba had been seized from your apartment could be later be used as evidence of bad character in another trial on unrelated issues. This might happen, for example, if you tried to introduce evidence in another trial to the effect that you were of good moral character and couldn't, therefore, be guilty of what you're accused of having done.
 
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