Search Warrants under Section 42 Criminal Investigation Act, Misuse of Drugs Act and the Crimes Act
Police have the power to search you as a person or your property at any time with your consent. Search warrants give Police the power to search for a certain thing or a certain person in a place or vehicle without your consent.
There are several different types of warrants but there are some common issues between each type of warrant that you should be aware of:
SEARCHING WITH A WARRANT
OBTAIN A COPY OF THE WARRANT
Before Police enter a place to conduct a search or as soon as possible thereafter, they must give you a copy of a warrant if there is one. Police must also identify themselves by giving you their name, rank and Police number.
CHECK THE WARRANT CONTAINS THE CORRECTION INFORMATION
The warrant must contain relevant information so that you can be sure what the search is for. This includes your full name and details, your address, the suspected offence to which the warrant relates, and the things that are liable to be seized. Police can only search a place or thing named in the warrant, which could include houses, vessels, vehicles or aircrafts. Police cannot search anything that is not named in it.
VIDEO RECORDING OF SEARCHES
It is now a requirement that search warrants are video recorded by Police. The Police must formally caution and advise a person of their right to remain silent throughout the search. This is an ongoing right, so even if the camera is switched on and off, a person is under no obligation to answer these questions.
Any footage of the search may be retained by the Police and could be used later in Court. If you are asked any questions, you should reply to all questions: “I do not wish to say anything, I wish to seek legal advice.”
OBTAIN A RECEIPT FOR SEIZED ITEMS
It is likely that Police will seize items during a search. If this is the case, a receipt must be provided to you. If documents are taken by Police, you should obtain the contact details of the Police Officer in charge of the Police section involved in the search and ask for copies of those.
POWERS TO SEARCH A PERSON
Police have the power to search you if you are in a place that Police are authorised to search by a warrant. You can also be searched if you come onto property or place whilst the search is being conducted.
Before doing a basic search or a strip search of you, the searcher must identify themselves and inform you of the reason for doing the search. If you do not consent to the search, you will be informed that it is an offence to obstruct the searcher doing the search.
A search must be done as quickly as reasonably practicable and must not be more intrusive than is reasonably necessary in the circumstances. The Police cannot question you whilst you are being searched about any offence that you are suspected of having committed.
SEARCHING WITHOUT A WARRANT
In certain circumstances, Police can search you without a warrant and without your consent. These circumstances include:
– when you are committing an offence;
– when you are under arrest;
– when Police suspect that you have something in your possession that is relevant to an offence; and
– to ensure security in a public place.
Similarly, in certain circumstances, Police can search your place without a warrant and your consent and these include:
– when looking for a suspect;
– when you are under arrest for a serious offence;
– when Police suspect domestic violence is taking or has taken place; and
– when Police suspect prostitution is taking place.
It is important to note that all powers that can be exercised under a search warrant can be exercised with your informed consent. Your informed consent means that you have been advised:
– of the powers that the officer wants to exercise in respect of the place; and
– of the reason why the officer wants to exercise those powers; and
– that you can refuse to the consent to the search.
Police can stop and search a vehicle in certain circumstances, including where they suspect that:
– an offence is being committed, or is about to be committed in the vehicle;
– the vehicle is relevant to an offence, for example, it has been stolen;
– the vehicle is carrying something relevant to an offence, for example, stolen property; and
– the vehicle is carrying a person who has been subjected to a criminal offence.
For further information contact Max Crispe on 0407 440 078, Kate Crispe on 0415 058 950, Shirley Casey on 0458 850 033 or Mel McEwen on 0437 030 713.