Police with Search Warrant

Do the Police Need a Search Warrant?

Search warrants. Anyone who has watched a crime drama on television is familiar with the concept: police officers charging into a home on the authority of a piece of paper. Or, if it’s a slightly more exciting plot, loose cannon detectives throwing caution to the wind and opting to commit a search without a warrant…creating problems for the lawyers later on in the episode.

But in the real world, what does a search warrant actually entail? And when do the police need one to perform a search? Below we cover some of the most frequently asked questions about search warrants in Queensland.

What is a Search Warrant?

In Queensland, the police generally do not have the right to search a person or premises (though exception do apply and are outlined below). However, if the officers obtain a search warrant they will be allowed to both enter the premises and search therein.

A search warrant is a written order issued by a judge or magistrate that grants police the authority to enter and search a premises at a specified date and time for the narrow purpose of seizing specified evidence which is believed to be connected to the commission of a crime.

Searching a Residence

            The police may try to enter a residence in order to conduct a search in order to obtain evidence relating to a crime. If the police are allowed to enter the premises and commit a search, then it is best for you to not answer any questions as any statements (including confessions) that you make may be used against you.

With a Warrant

If the police have a warrant, you should first ask to see it and then insist on receiving a copy of the warrant. Pay attention to the details and make note of anything that seems incorrect. Even with a warrant, the police may only stay as long as is reasonably necessary to complete the task outlined in the warrant. When entering the property, the police must also provide you with a list of their powers under the warrant, possibly including (but not limited to):

  1. Removing wall, floor, or ceiling panels when searching for evidence
  2. Photographing possible evidence
  3. Digging
  4. Seizing your property as evidence
  5. Opening locked safes, cupboards, chests, filing cabinets, etc.
  6. Detaining or searching individuals on the premises to determine if they have anything detailed on the warrant.

If your property is damaged by a police search authorized by a warrant which allows forced entry and they find drugs or evidence of an offence, then you probably won’t be compensated for the damage. However, if no evidence is produced, you should contact the senior police officer to file an official complaint.

Without a Warrant

If the police do not have a warrant, you can usually refuse them entry. If you refuse them entry, do so respectfully by clearly stating that you are not inviting them in and do not give your consent for them to remain on the property.

However, there are times when Queensland police can enter a property without a warrant or your consent, including:

  1. To arrest a person they reasonably suspect is located on the property
  2. To conduct a breathalyzer test
  3. To serve legal documents or notices
  4. When there is a seriously injured person on the premises
  5. To search for evidence that they reasonable suspect will be otherwise destroyed or hidden
  6. To reach a crime scene
  7. To detain someone under an anti-terrorism preventative detention order.

When they enter without a warrant for any of these reasons, they are only permitted to do so for the reasonable amount of time it would take them to perform the action or serve the document. If they are entering sans warrant to arrest or detain someone, the officer must have a reasonable suspicion that the person is actually on the premises. Reasonable suspicion, like reasonable time, is fairly subjective. But most courts agree that there needs to be some fact which would cause a reasonably minded person to conclude something.

Searching Your Person, Belongings, or Vehicle

            Though the police are not automatically authorized to conduct a search of your person, belongings, or car, they may do so (even without a warrant) if they have a reasonable suspicion that any of the following items are in your possession:

  1. Weapons
  2. Illegal drugs or paraphernalia
  3. Stolen property
  4. Graffiti instruments
  5. Housebreaking or car stealing instruments
  6. Something you intend to harm yourself or others with
  7. Evidence of drinking alcohol in a public place
  8. Evidence of either willful damage or an offence punishable by 7 years jail-time.

If a police officer may legally search you, then the searching officer must be of your same sex, respect your dignity, and limit the scope of the search as much as possible. In the case of a strip search the police may not search your body cavities and respect your privacy.

Cellphones/Computers

In Queensland, the search warrant must specifically state that the search is meant to include your computer or cellphone. If it does not, then you have the legal right to refuse access. If it does, then you are legally required to provide the necessary passwords and facilitate access as best you can.

Bikies

What are the Consorting Laws in Queensland?

According to a recent report by the LNP, only 27 bikies in Queensland have handed in their patches since the Labor government introduced its new organised crime laws in late 2016.

At that time, the Palaszczuk Government overhauled the state’s organised crime laws and made redundant much of the former government’s controversial bikie laws.

By way of summary, the legislation extended its powers of banning of outlaw motorcycle club members not just wearing their club colours in licensed premises, but all public places.

The legislation also replaced the anti-association provisions with a new offence, making it illegal for a person to consort with two or more convicted offenders if they have been previously warned by Queensland police not to do so.

This offence applies to adults, that is, people aged 18 years or over and does not apply to young people.

In relation to the definition of a “convicted offender”, the legislature deems that it is a person who has previously been convicted of an indictable offence, punishable by a maximum penalty of five or more years imprisonment. Alternatively, a “convicted offender” has been convicted of prescribed offences where the maximum penalty is under five years, in circumstances where they have been identified as being associated with organised crime.

The new consorting offence also allows Queensland Police to search a person they reasonably suspect has consorted, is consorting or is likely to consort with one or more recognised offenders.

Importantly, the consorting is not limited to a physical association. Accordingly, the laws are broad enough to encompass any kind of communication, in particular, phone, email or any type of social media. Furthermore, there isn’t a requirement that the consorting be linked to, or have any suspected link to, criminal activity in any way.

The Queensland laws draw heavily on the NSW consorting laws, that since their inception have had multiple reviews, namely one in 2014 and another in 2016. Both these reviews by the NSW Ombudsman found deficiencies in the way police were using the legislation.

If you have been charged with any offence under the new legislation, we highly recommend you seek legal advice.

Child sitting in a room corner

Mason’s Law Seeks to Protect Children

On 14 September 2016 Queensland Parliament passed the Child Protection (Mandatory Reporting – Mason’s Law) Amendment Bill 2016.

The amendment to the legislation resulted from the stoic campaigning of Townsville grandparents John and Sue Sandeman who petitioned both sides of Queensland Parliament to change the law after the death of their grandson Mason Parker in 2011.

Their grandchild was murdered by his mother’s then-partner.

It was alleged that days before the death, childcare workers had noticed bruising on Mason’s body but had not reported it to the authorities.

The Child Protection Act 1999 requires that if certain professionals (“a relevant person”) form a reasonable suspicion that a child:

(a)has suffered, is suffering or is at an unacceptable risk of suffering significant harm caused by physical or sexual abuse; and
(b)may not have a parent able and willing to protect the child from the harm

then that professional, must report such to the Department of Child Safety.

Prior to 1 July 2017, the types of professionals required to make a report were:

(a)A doctor;
(b)A registered nurse;
(c)A teacher;
(d)A police officer who works in child protection; and
(e)A person engaged to perform a child advocate function under the Public Guardian Act 2014 (Qld).

As of 1 July 2017, early childhood education and care professionals will be included. That is, persons who are:

(a)An approved operator of an education and care service;
(b)A supervisor or staff member of an education and care service;
(c)A nominated supervisor or staff member of an education and care service.

The explanatory notes identify that the objective of this legislation is to protect children at an age, who are particularly vulnerable and intervene in a timely manner.

Firearms Amnesty

Firearms Amnesty

The Government has recently announced a firearms amnesty, in place from 1st July to 30th September 2017.

The amnesty comes over twenty years after the famous 1996 amnesty, announced by then Prime Minister John Howard, following the tragedy that occurred at Port Arthur.

The 2017 amnesty is aimed at putting a dent in the estimated 260,000 illegal firearms believed to be in circulation within Australia. With rising gun crimes as well as the constant terror threat, the “no questions asked” amnesty is the latest step in protecting the community from gun and weapon-related crime.

This amnesty allows anyone to hand-in any firearms or related items (whether registered or not) with a guaranteed immunity from prosecution.

The items covered as part of the amnesty are as follows:

  • Firearms;
  • Any firearm parts, such as barrels/triggers/frames etc;
  • Silencers or any other suppressor;
  • Magazines;
  • Ammunition;
  • Knives, crossbows; and Vests

Firearms and related articles can be surrendered either for registration, sale or destruction at either a local police station or a licensed firearms dealer.

It is important to note that you should contact your local police station or licensed dealer prior to attending with any firearm or related article and NEVER take a loaded firearm in public.

Should you require any legal advice or assistance in relation to this amnesty or any other issue with respect to firearms or weapons in general, you should contact our Brisbane Criminal Lawyers on (07) 3229 3166.

City people walking in a futuristic tunnel

Another Man Charged with the Murder of Samuel Thompson

Criminal Lawyers Brisbane at Bosscher Lawyers are acting for Anti-Islamic State fighter Ashley Dyball who has been remanded in custody charged with murder over the disappearance of Samuel Thompson, allegedly last seen on March 7.

Mr Dyball is the second man to be charged in relation to Mr Thompson’s disappearance.

Roberto Vincenzo Boscaino was charged with murder and interfering with a corpse on Thursday.

Mr Dyball’s lawyer Alex Jones said his client was “upset at the situation”.

Mr Jones said he had spoken with Mr Dyball’s family who had found news that their son had been charged “quite shocking”.