Police officers can search premises with or without a search warrant. However, there are certain laws and regulations they have to abide by before and during the execution of the search warrant. The occupant or occupants of the house also have rights. It is important to be aware of these rights before or during a police search. This will ensure a person is treated fairly and that no illegal evidence is obtained during the search warrant and then used against a person in a criminal matter.
A search warrant is a written order from a judicial officer. This court-issued document gives police the power to enter the premises named in the warrant and to conduct a search.
Under the NSW Law Enforcement (Powers and Responsibilities) Act 2002 police officers can enter a premise without a search warrant if the person allows them entry without a police search warrant. The occupier can agree to the search, change their minds and withdraw their consent at any time. However, the police might still execute the right to continue the search without the person’s consent.
The police can also enter:
· If they believe that a crime is in progress
· To arrest an offender that they believe is inside the premise
· If they believe a person on the premises has suffered an injury or is about to suffer an injury
· If it is necessary to prevent a breach of the peace
· If they believe a person is committing an indictable offence inside the premises
The police also have a right to search a person or their premises without a police search warrant. They can do so if they have reasonable grounds to believe the suspect in question has a dangerous weapon, illicit drugs, stolen property, or any object to commit a crime, harm another person or themselves, or are connected to an indictable offence on the premises.
The following laws apply to search warrants in NSW:
· Section 3E of the Crimes Act 1914 (Cth)
· Part 5 of the Law Enforcement (Powers & Responsibilities) Act 2002
· Division 3 of the Crime Commission Act 2012 (NSW)
In summary and according to the above laws police can search a person, their premises, their vehicle, or other places if:
· They asked for the person’s consent and the person agrees to let them carry out the search
· They have a valid search warrant to conduct the search with or without the consent of the occupier
· The law gives the police the power to search without a warrant and consent
Police can search the premises of a person without a search warrant and consent when:
· They are looking for a suspect or a person who has possession of something relevant to an offence
· An offender is under arrest for a serious offence
· The police suspect serious offences have been committed involving family violence or prostitution
Police can search a person’s vehicle without a search warrant and consent when:
The police have to give clear reasons why they believe they will find evidence at the premise during the application to issue a search warrant. The police have to prove reasonable grounds to the issuing Justice for the search warrant. The police have to believe that there is or will be when the warrant is executed, evidence that is connected to an indictable offence, or will be used in an indictable offence and that the search will likely lead to an arrest.
Section 46A of the Law Enforcement (Powers & Responsibilities) Act 2002 name the searchable categories and the offence have to fall under one of these categories. The searchable offence must be an indictable offence or a drug-related, robbery, firearms or child pornography offence to justify a search warrant.
The issuing Judge will record the reasons why the search warrant was granted otherwise the warrant is invalid. The warrant lasts for three days. This timeframe can be extended by the Judge in certain circumstances and the police have to report back to the Judge within ten days after the warrant has been executed.
Only police officers ranked above sergeant can apply for search warrants for drug premises believed to be used for the making or selling of illegal drugs. This specific search warrant gives police the power to search the premises and any person found on the premises.
Covert search warrants are warrants that are executed without the knowledge of the occupier of the premises. Only a police officer with the rank of Superintendent or above can apply for a covert search warrant and the application has to be made to a Judge in the Supreme Court. This type of search warrant can only be used in an investigation of serious offences and must be executed within 10 days from the date of issue.
The covert search warrant allows police to search the premises and any adjacent premises without any notice. The police are allowed to impersonate any person to gain entry and they are allowed to cover up their search.
Police officers have to inform the occupants of the premises that they have a search warrant before they enter the premises to conduct a search. Section 67 of the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) states an eligible issuing officer has to prepare and give an occupier’s notice to the occupant (older than 18 years). This does not apply to a covert search warrant.
The occupier’s notice has to stipulate the details contained in the warrant and must include:
· The name of the police officer who applied for the warrant
· The date and time when the warrant was issued by the Judge
· The address of the premises where the warrant applies.
The occupier’s notice has to be served upon entry into the premises and if the occupier is not present at the time, within 48 hours of the execution of the warrant. Police have to comply with all the terms of the search warrant and a warrant cannot be executed at night unless the search warrant authorises it. Police can enter the premises once they have a valid search warrant and have demanded entry. An occupant can only refuse entry if the warrant lists the wrong address or if the date and time of the warrant have lapsed.
The police can use reasonable force against any person or anything to enter the premises if the occupants refuse entry. This reasonable force may include causing damage to the premises, where it is reasonable to carry out the police search warrant. It is a criminal offence to obstruct or hinder the police when they are executing a valid search warrant. A maximum penalty for obstructing police during the execution of a search warrant is a fine of $1,100, two years in prison, or both.
The police have to follow the following guidelines to search premises:
· Clearly identify themselves
· Tell the occupant that they intend to enter the premises
· Give the legal basis for the search for example under a search warrant and hand over the occupier’s notice
· Ask if the person consent
· If the occupant is not home during the search, leave the notice and a copy of the search warrant
The police will search the premises as noted in the police search warrant. They can take items or things as listed in the warrant and video material can be made of the premises during the execution of the search warrant. The police need to provide an itemised receipt of all the items taken during the execution of the search warrant.
The police may search any person in the premises during state and crime commission warrants if they believe the person has something on their person that is being searched for with the warrant or if they are connected to any other offence.
Police can search a person when:
· The person is committing an offence
· When a person is under arrest or in police custody
· They look for something relevant to an offence
· When they have to enforce a prohibited behaviour order
· To look for any proceeds of a crime
The police have to ask the Magistrate to authorise a search of people during the application for a commonwealth warrant. The police do not have the power to question or interview people during the execution of a search warrant. However, the police do videotape the execution of the search warrant and any questions and answers will be recorded and can be used as evidence.
The police should follow the following guidelines to search a person during the execution of a search warrant. The police should:
· Clearly identify themselves
· Give a concise reason for the search
· Ask if a person consents to the search
· Advise the person they can still conduct the search even if the person does not give consent
· Instruct the person that it is an offence to obstruct the search
· Tell the person why clothing needs to be removed if and when needed and allow a person to dress again after the search
· Use a person from the same sex as the person to be searched
If a police officer did not follow the correct procedure during the application of a search warrant the court may rule the warrant and search as invalid and illegal. If the police entered the premises without valid cause they are breaking the law. The police are also not allowed to speculatively search for other items, items have to be specified on the warrant.
The Court will take the following into consideration deciding if evidence obtained during an illegal search will or will not be included as evidence during the court proceedings:
· How seriously did the police breach the law
· Was the breach of law deliberate
· How serious is the alleged offence
· How important is the information in the case
A person can do the following if the police want to carry out a search:
· A person can ask the police what legal power they have to carry out the search if they have not informed the person upon arrival.
· If the person consents to the search, the police can proceed with the search without relying on other powers.
· If a person does not consent to a search, the police can rely on their powers to search without a person’s consent.
It is important to stay calm, to not be abusive, and to not resist the search warrant. Stay out of the way, even if the police are searching without consent. A person can make a complaint about the actions of the police if the occupant thinks the police have used more force than they needed to carry out the search warrant.
A person should make notes during the search about what happened and who was involved, and take photos or get medical records to show any injuries or property damage caused during the execution of the search. The occupant can claim for trespassing, damage, assault, or unlawful arrest. They can also demand the return of their goods.
If a person is concerned that police have acted inappropriately during a search warrant, they should legal advice and contact a criminal defence lawyer for assistance. Lyons Law Group can assist you with this legal matter.