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Right of gardaí to enter driveway of house challenged
on 15/03/2013 00:00:00
Defence barrister Donal O'Sullivan argued, at Cork Circuit Appeals Court, that the appeal should be allowed because the investigating garda went onto the drive of the defendant. He argued that the gardaí had a legal right to go onto a private property - but only in circumstances where they were about to make an arrest or had a search warrant.
The barrister said neither of those circumstances prevailed when Garda Thomas Barry stepped onto the driveway of the home of Cornelius Shannon, aged 40, at Beech Grove, Herons Wood, Carrigaline, Co Cork, at 1.40am on Dec 5, 2010.
Garda Barry testified that the appellant's driving came to his attention on Carrigaline Rd. He put on the blue lights of the Garda car and followed Shannon, who drove into the driveway of his house.
The garda said he stopped his car out on the road, went onto the drive and spoke to the driver, and asked him to come over to the Garda car to provide a breath specimen.
Following a failure of that test, the driver was arrested and later found to have 199mg of alcohol per 100ml of blood. He was convicted and disqualified at Cork District Court.
Prosecuting solicitor John Brosnan said gardaí had an implicit power to go onto a property in pursuance of their investigations and to ask questions.
Mr O'Sullivan said that in the circumstances of the case the garda would have had the right to go onto the property to make an arrest, but did not have a general power to go onto the property to continue his investigation where - at the time - he did not have the intention of making an arrest.
Judge Patrick J Moran said: "I take the view that the guard has a right to go and ask questions." Mr O'Sullivan submitted: "I say the gardaí have not got such a right."
Judge Moran put the matter back to Apr 23 for further legal submissions.