“A man’s home is his castle” is an adage dating back from 1605 in the English common law. Whilst it may sound antiquated, the protection of a person’s dwelling and their right to privacy remains an enforceable right under both the common law and statute law.
This protection nevertheless has a number of notable exceptions – the exceptions focused on in this article are the powers of police to conduct raids, and to enter premises with or without a search warrant.
Understanding both your rights and the obligations placed upon police is important and beneficial if you are ever presented with the sudden and traumatic experience of being raided or searched.
Raids
The general rule is that police will need to obtain a search warrant prior to searching a person’s private property. In Queensland the authority for police searches generally comes from the Police Powers and Responsibilities Act 2000.
Entering premises without a search warrant
However there are limited circumstances when a search can be conducted without obtaining a warrant beforehand. Those are:
- If the police reasonably suspect that there is evidence of a Part 2 Offence that may be concealed or destroyed if a search is not immediately conducted; or
- If the police reasonably suspect a Part 2 Offence has been, is being or will be committed in respect of a transport vehicle that may endanger the safety of people or the transport people.
Part 2 Offences include:
- An indictable offence;
- An offence involving gaming or betting;
- An offence against any of the following Queensland Acts-
- Confiscation Act;
- Explosives Act 1999
- Nature Conservation Act 1992
- Weapons Act 1990;
- An offence of attempting to take liquor into a restricted area or possession of liquor in a restricted area.
The police have the same powers as they do under a search warrant (which are discussed below) and you have the same rights. In those circumstances, a post search order needs to be obtained by the police from a Magistrate as soon as practicable after the search is completed.
Obtaining a search warrant
In Queensland, the police must apply to a Justice of the Peace, Magistrate or Judge to obtain a search warrant. The most common practice is that the application is made to a Justice of the Peace. The application is a sworn document and must outline to the Justice that there are reasonable grounds for granting the application before the Justice will issue the search warrant.
Search warrants can be sought by police for a variety of suspected offences with the most common being drugs or stolen property.
As part of that application process the police must provide particulars about the suspected offence, why the search is necessary and items to be seized under a search warrant. Indeed, police are limited to seizing the items specified in the warrant, and must stop their search once the particular items have been located and seized. Of course it is a little different for a drug related warrant as the search will continue until the entire property named in the warrant has been searched.
Normally the search warrant will expire seven days after it has been issued. The powers granted to police under the search warrant are as follows:
- to detain any person at the place for a reasonable time;
- to search the person of anybody found at the place;
- to open anything that is closed or locked;
- to dig up land;
- to inspect animals the Police reasonably suspect might provide evidence;
- to remove wall or ceiling linings or floors of a building, or panels of a vehicle;
- to seize anything that the Police reasonably suspect might provide evidence, including vehicles and computers; and
- to photograph anything that the Police reasonably suspect might provide evidence.
Greater powers, such as causing structural damage, can be only granted to police through an application to a Supreme Court Judge.
During a search the police can seize anything that they reasonably suspect could provide evidence in relation to the commission of any offence. It need not be in relation to the offence or items listed on the search warrant. This means that where the police find evidence in relation to some other offence they did not previously suspect you of; they can still use this evidence against you even though the search warrant was in respect to something else.
Execution of a Search Warrant
When the police execute a search warrant at a premises, they must provide a copy of that warrant to the occupier. The police must also provide a document referred to as a notice or statement to occupier. This document outlines both the rights and responsibilities of the occupier and the police. The most senior officer present must also provide all of their details to the occupier.
If you ever find yourself in this position, it is our advice that you carefully read both of those documents so that you are aware of what the police can and cannot do and also what is required of you. Importantly, if you do not comply with a lawful search warrant you may be subject to an arrest and subsequent Court action.
When the police seize property as a result of the search warrant they are required to provide you with a copy of a property receipt which clearly details what property they have seized.
A search of your property can also be conducted in your absence by police. When this occurs, the police are required to leave a copy of the documentation outlined above in a conspicuous place for the attention of the occupier.
It is not uncommon for police to question the occupants of a premises (whether they reside there or not) during the course of conducting a search warrant. If the police attempt to question you during the search warrant, they must first caution you on your rights. It is important to remember that you do not have to answer any questions other than providing your name, date of birth and address. If the police request that you attend the police station for questioning, you do not have to attend unless you are under arrest
If you are subject to a search, with or without a warrant we would recommend that you seek legal advice as soon as you able.
