The Court of Appeal dismissed Jason O’Brien’s appeal against his conviction for possessing diamorphine, holding that Gardaí acted within statutory search powers when they detained him and searched his car at a garda station.
O’Brien had been convicted by a jury at Dublin Circuit Criminal Court of possessing diamorphine on 19 May 2010, contrary to section 3 of the Misuse of Drugs Act 1977. The jury disagreed on a separate charge of possessing the drug for sale or supply. The Director of Public Prosecutions later entered a nolle prosequi on that count. O’Brien received a fully suspended 12-month sentence for the possession conviction.
The appeal concerned the admissibility of drugs found during a search of O’Brien’s car. Earlier that day, Gardaí had seen O’Brien and another man, later identified in the judgment as his co-accused, counting money in a Citroen in Clondalkin. In a later search, Gardaí found €1,200 on the other man, Mr Heffernan. After bringing O’Brien and the car to Clondalkin Garda Station for a more thorough search, Gardaí found a package behind the car radio containing brown powder suspected to be diamorphine, weighing about 56 grammes. The judgment says O’Brien later admitted in interview that the drugs were his and said he had paid €1,600 for them.
O’Brien argued that the station detention was effectively an arrest, pointing to his handcuffing, transport in a garda car, custody record and confinement in a cell while the car was searched. He submitted that the drugs were obtained during unlawful detention and should not have been admitted. At trial, the judge ruled that the Gardaí had acted under section 23, which permits detention for a reasonable time to carry out a search, and rejected the challenge to the detention.
The Court of Appeal said detention under section 23 necessarily restricts movement and may, depending on the circumstances, involve handcuffs or holding someone in a room or cell. It held that the handcuffing and transport to the station did not turn O’Brien’s detention into an arrest. The court also said Gardaí were entitled to search the car and seize the suspected diamorphine as potential evidence, regardless of O’Brien’s location or status during the events.
The court concluded that none of the grounds argued on appeal could succeed and dismissed the appeal. The judgment does not set out any change to the suspended sentence.