What You Need to Know About Search Warrants
Though TV crime dramas like to glorify the loose cannon cop who doesn’t “play by the rules” and will break down a door in a heartbeat, in reality there are protections in place to shield citizens from such reckless behaviour by police. Below, you can find a brief overview of searches, both with and without a warrant, as well as the definition of some important terms. If you are in need of advice regarding a search matter, please contact a lawyer today and protect your rights.
Right to refusal: Police in Queensland do not have an automatic right to enter your home. If you are refusing them entry, state clearly that you are not inviting them in nor do you consent to any officer remaining on any part of your premises. It is important to keep calm and treat the officers with respect, as anything you say may be used as evidence against you later. Also, make note of any witnesses so that there are other stories to support your claim that you refused police entry.
Police entry without warrant: Though you generally have the right to refuse police entry on your property, there are situations where they will be able to enter without a warrant and without your consent. For example, an officer may enter your home when: handing over a legal document; in an emergency; testing blood alcohol content after a traffic incident; pursuing an escapee; searching for evidence that is in danger of being hidden or destroyed; executing an arrest; reaching a crime scene; or in the event of an anti-terrorism order. These reasons need to be based on “reasonable belief” and within a “reasonable time” (see definitions below).
Police entry with a warrant: A warrant will allow police the right to search your property. Always ask to see the warrant, read through it carefully. The police will then be allowed a reasonable amount of time to conduct their search and have certain powers: detaining those present; removing wall, floor, and ceiling panels; taking pictures; digging and searching those present.
Informal police interviews: It is important to not answer any questions asked while the search is underway, as anything you say can be used against you as evidence.
Searches of your person or vehicle: Police have no automatic right to search you or your vehicle without cause. The officer will be allowed to conduct a search if they have a reasonable suspicion that you have a weapon, illegal drugs or drug paraphernalia, stolen property, contraband, graffiti tools, tools of theft, something you are intending to use to harm yourself or another, evidence of public drinking, or evidence of any offence punishable by at least seven years of jail-time.
Police requirements: When conducting such a search, police must treat you with respect and follow certain guidelines. You should not be searched in the presence of security cameras, and if any clothes are seized for evidence you must be provided alternate pieces of clothing. If and when the search is in public, the officer must strive to cause you the least amount of embarrassment and limit the search to a frisk if possible. More invasive searches should be conducted in private and, unless an immediate search is required, searches should be conducted by an officer of the same sex.
Computers and mobiles: You are allowed to refuse a request to search your computer or mobile phone and police will have to acquire a warrant to conduct this search. However, the police may seize these items in the interim to prevent tampering or deletion of evidence.
“Reasonable Time”: The amount of time required to ask questions and make reasonable observations or investigation.
“Reasonable Suspicion”: Most courts agree that a reasonable suspicion can be assumed when there is presence of some fact that would make a reasonably minded person believe the same thing. An important note is that a suspicion does not need to be right but merely reasonable.