The Court of Criminal Appeal quashed David Lynch’s conviction on one count of possessing stolen property after finding that a flat searched under an invalid warrant was his dwelling for constitutional purposes.
The court treated Lynch’s application for leave to appeal as the hearing of the appeal. It allowed the appeal in respect of the first count only. His convictions on two other counts are not addressed by the order described in the judgment.
Gardaí obtained a District Court warrant to search a flat at 34 Pembroke Lane, Ballsbridge, Dublin 4, where they suspected stolen property would be found. The warrant did not name a particular Garda member, as required by section 48(3) of the Criminal Justice (Theft and Fraud Offences) Act 2001. The trial judge had ruled it invalid, and that ruling was not challenged in this appeal. The search found stolen items that formed the basis of the first-count conviction.
At trial, the prosecution argued that although the search was unlawful, it was not unconstitutional because Lynch was a trespasser and the flat was not his dwelling. Evidence at a voir dire included an owner’s agent’s account that the property was vacant and intended for demolition, and Lynch’s evidence that a third party had given him the keys. The third party did not give evidence. The trial judge found that Lynch had no legal title or basis to occupy the flat, but admitted the evidence on the view that there had been no deliberate breach of his constitutional rights.
The appeal court held that whether a place is a person’s dwelling is a question of fact in this criminal-law context. It noted that Gardaí had the address on their records as one of Lynch’s addresses and had sought the warrant because they believed he lived there.
The court concluded that the flat was Lynch’s dwelling. Because the warrant was invalid, the search was not carried out in accordance with law and infringed the dwelling’s constitutional inviolability. Applying the exclusionary rule in People (Director of Public Prosecutions) v Kenny, the court said the evidence had to be excluded even if the constitutional breach was unintentional. It held that the trial judge had no discretion to admit it and quashed the first-count conviction.