Protection of the individual rights of personal freedom, privacy, dignity and property is a central plank of the law. Clearly, police searches intrude upon those rights. The law of search and seizure attempts to strike a balance between the community interest in effective law enforcement and the maintenance of individual rights and freedoms.
A network of Commonwealth and State legislation sets out the specific circumstances in which the police may stop and search a person or vehicle,and/or enter a private place and seize evidence. As well as outlining the nature of police powers, the law also sets out the way in which the powers must be exercised.
In Queensland, the primary pieces of legislation which govern search and seizure are the Police Powers and Responsibilities Act 2000 (Qld), the Drugs Misuse Act 1986 (Qld) and the Criminal Code (Qld). The Crimes Act 1914 (Cth)also contains provisions relevant to search and seizure under commonwealth law.
In the event that you believe that your property has been wrongfully seized,there are a number of ways in which you can apply for its return at law. It is important to realise that searches without a warrant may be justifiable in certain circumstances.
SEARCHES - GENERAL PRINCIPLES
Legal Rights and Duties of the Police
The police have no general power to randomly stop and search people, or their homes. However, legislation exists that permits the police to search persons,places and vehicles when investigating crime. Such searches may occur either with or without a search warrant.
In certain circumstances the police can lawfully conduct searches on the spot without a warrant. Substantial penalties apply to persons who resist or obstruct a legitimate and lawful police search.
Types of Searches
Essentially, there are three types of police searches:
vehicle searches; and
Searches of Persons in Custody
Searches of persons lawfully detained in custody are the subject of separate rules. Persons in custody may be searched and re-searched as is necessary to locate, seize and retain items which may:
be evidence of the commission of an offence;
be used to facilitate escape; or
endanger anyone's safety.
Whether or not the measures employed by the police during the search of a person in custody are reasonable will depend on the likelihood that the person may attempt to commit an offence, escape or endanger the safety of another, in all the circumstances of the case.
In every case where an illegitimate search is being conducted, it is permissible for a person to use force to resist. Moreover, persons who suffer as a result of an illegitimate search may have a criminal action in assault, as well as a civil action in trespass, against the offending police officer(s).
One must always be very careful about resisting a search however, because the police have very wide search powers, and heavy penalties apply for obstructing a legitimate search.
POLICE POWERS OF ENTRY, INQUIRY AND INSPECTION
Entry and Search of Public Places
Police officers have general powers of entry, inquiry and inspection of public places. For example, an officer is permitted to enter any public place such as a nightclub, hotel, casino or show ground to:
serve a document, or
investigate an alleged offence, a missing person report, or a traffic incident report.
Entry and Search of Other Places
Police officers are also permitted to enter business offices, home garages and backyard areas for the above purposes. Upon entry, officers may stay in those places for a 'reasonable time'. A reasonable time to stay at a place is determined according to the time that is necessary for the officer to perform the function with which he or she is involved. The police may not use excessive force to enter a place.
The general powers of entry held by the police do not permit officers to enter a private dwelling without an occupier's consent. An officer is required to obtain a search warrant to enter a private dwelling, other than in the exceptional circumstances discussed below.
Entry and Search for Arrest
Police officers are empowered to enter and stay on a private dwelling or other place, including a vehicle, to arrest or detain a person. An officer may only enter and search a private dwelling for arrest if holding a reasonable suspicion that the person being pursued is at the dwelling. Upon entry, the officer has the power to search the place for that person.
Entry and Search to Enforce Licensing Laws
Police officers also have a broad-based power of entry and search to ensure compliance with statutory licensing rules (ie, licenced premises serving liquor,second-hand dealerships, weapons licensees). For example, a police officer may enter and inspect a hotel to monitor compliance with the Liquor Act, or a licensed brothel to enforce the provisions of the Prostitution Act 1999 (Qld).
SEARCHES UNDER WARRANT
Issue of Search Warrants for Places
Under the Police Powers and Responsibilities Act 2000 (Qld) the police may apply for a search warrant allowing them to enter and search a place (including a vehicle) to obtain evidence of the commission of any offence. To obtain a search warrant, the officer must be able to show reasonable grounds for suspecting that evidence of the commission of an offence is at the place or is likely to be taken to the place within the next 72 hours.
A Supreme Court judge must issue a search warrant if the search will cause structural damage to a building. A justice of the peace may issue a search warrant in most other circumstances.
Importantly, a person searched under a search warrant issued by an inappropriate judicial officer may be able to challenge the validity of the search, and the admissibility of any evidence seized.
SEARCHING PERSONS, VEHICLES AND PLACES WITHOUT A WARRANT
Searching Persons without a Warrant
The Police Powers and Responsibilities Act permits police officers to search persons without a warrant.
The authority of the police to search a person without a warrant is dependent upon the existence of a 'prescribed circumstance'. If a police officer reasonably suspects that a 'prescribed circumstance' exists. The prescribed circumstances in which an officer may search a person without a warrant includes circumstances in which the person is reasonably suspected to be in possession of:
a weapon, knife or explosive;
an item which the person intends to use to cause harm to any person;
a dangerous drug;
stolen, illegally obtained or tainted property;
evidence of the commission of an offence punishable by a minimum of seven (7)years imprisonment, which the police officer reasonably suspects may be concealed or destroyed if a search is not conducted;
an implement of housebreaking, motor vehicle theft or drug use.
Searching Vehicles without a Warrant
An identical set of rules apply to police searches of vehicles without a search warrant. A police officer may stop and search a vehicle, together with anything in it, if any of the above 'prescribed circumstances' exist.
When searching a vehicle, the police are allowed to enter, re-enter and stay in the vehicle as often, and for as long, as is necessary to properly carry out their search. The police also have the power to move a vehicle to an appropriate place for a search, in particular if it is impracticable to search the vehicle where stopped.
Searching Public Places without a Warrant
It is legal for a police officer to enter and stay on a public place, without a search warrant and for a reasonable time. If the place is accessible to the public when open, but is presently closed, the police officer may only search the place with the consent of the occupier, or by way of a search warrant. A cinema is an example of such a place.
SEARCH AND SEIZURE UNDER THE DRUGS MISUSE ACT 1986 (QLD)
The Drugs Misuse Act 1986 (Qld), gives the police wide-ranging powers of search and seizure in respect of vehicles, persons and places which may contain evidence of drug offences. Police powers of search and seizure under the Drugs Misuse Act compliment those already discussed. Importantly, the Act provides for searches both with and without a search warrant.
Search of Persons without a Search Warrant
If a police officer reasonably suspects that a person is in possession of:
a dangerous drug;
evidence of a drug offence;
a chemical used, or a piece of property contaminated by a chemical used, in the manufacture of a dangerous drug; and/or
any property or funds associated with a drug offence
The officer may stop and search the person, together with anything in possession of the person. If it is not practicable for the officer to conduct a search of the person where stopped, the officer may take the person, together with anything in possession of the person, to another place to be searched.
Any evidence of a drug offence, and/or thing liable to forfeiture, may be seized.
Body Cavity Searches without a Search Warrant
A police officer of the rank of inspector or higher who suspects that a person has a dangerous drug hidden within a body cavity, has the power to require that person to submit to a body cavity search.
The search must be conducted by a person of the same sex as the person being searched, or a nominated medical practitioner and assistant. The search may be conducted using such force as is reasonably necessary. A machine, instrument or device may be used for the purpose of the search.
Searches of Places with a Search Warrant
A police officer may apply for a warrant authorising the search of a place in connection with a drug offence. A justice of the peace may issue the warrant if satisfied that the officer has reasonable grounds to suspect that a search of the place may reveal evidence of a drug offence.
Searches of Places without a Search Warrant
The police have wide powers of search and seizure in respect of private dwellings and business premises under the Drugs Misuse Act. An officer may enter a place and search without a search warrant, if the officer has a reasonable suspicion that either:
evidence of a drug offence; or
anything liable to forfeiture
is in the place, or in the possession of a person in, or about the place, and it will be concealed or destroyed unless the place is immediately entered and searched.
Searches of Vehicles without a Search Warrant
Similarly, a police officer may stop and search a vehicle, as well as anything in it, if the officer reasonably suspects that the vehicle contains:
evidence of a drug offence; or
anything liable to forfeiture.
STATUTORY SAFEGUARDS FOR SEARCHES
Safeguards for Personal Searches
The law requires that police officers do everything possible to protect the dignity and privacy of persons being searched. Accordingly, the police must take measures to:
ensure that the search causes minimal embarrassment to the person; and
restrict searches conducted in public to an examination of outer clothing.
Personal Searches involving the Removal of Clothing
A police officer may require a person to remove some or all of their clothing for the purpose of a lawful search. In such circumstances, the officer must inform the person that they will be required to remove their clothing and why the search is necessary, as well as asking the person for their co-operation.
Unless an immediate search is necessary, the officer conducting a search involving the removal of clothing must be the same sex as the person being searched, or a doctor. Moreover, such searches must be conducted in a way that provides reasonable privacy for the person being searched.
Finally, the search must be conducted as quickly as possible, with the person being allowed to dress as soon as the search in completed. No officer is permitted to make contact with the genital or anal areas of the person, but may make a visual inspection. If clothing is seized during the search, the person must be given appropriate clothing to wear.
Personal Searches near Video Cameras
If the area in which a person is being searched is monitored by a video camera, that camera must be turned off, or the search conducted out of view of the camera. The rule applies unless the person viewing the monitor is a police officer of the same sex as the person being searched.
Special Requirements for Searching Children & Impaired Persons
A 'support person' must be present at the search of a child, or at the search of any person who may not understand the purpose of the search. A support person for a child is usually a parent or guardian of the child, or a lawyer acting for the child. However, a police officer may conduct a search of a child or intellectually impaired person without a support person given a reasonable suspicion that to delay the search would endanger the safety of a person, or result is evidence being lost, concealed or destroyed.
Safeguards for Vehicle Searches
A police officer has the power to move a vehicle to any place for the purpose of a search. However, before moving a vehicle, the officer must consider whether the search will be more effective at the other place. The person from whom the vehicle was seized has a right to be told where the vehicle is to be taken, and to be present during the search.
Obstructing Searches of Persons or Vehicles
It is an offence to obstruct a lawful police search, or to fail to comply with a lawful police direction. A police officer must warn any person who does so. The person should then be given a reasonable opportunity to comply with the warning. After this point, the police officer may use force to overcome the person.
Importantly, an attempt to conceal, destroy or dispose of evidence of an offence to which a search relates falls within the meaning of 'obstructing a police search'. This does not mean however, that a suspect must positively help police during a search by locating items, or answering questions, etc.
This Information Outline is available courtesy of AussieLegal's online legal information and law firm referral service.
If you want further information, we recommend contacting the law firm of Ryan& Bosscher Lawyers who specialize in this area of law. They are located at 3rd floor, Bank of NSW Chambers, 33 Queen Street, Brisbane 4000,or call them on (07) 3229 3166.
Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become the premier Criminal Defence firm in Queensland, committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.