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):
- Removing wall, floor, or ceiling panels when searching for evidence
- Photographing possible evidence
- Seizing your property as evidence
- Opening locked safes, cupboards, chests, filing cabinets, etc.
- 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:
- To arrest a person they reasonably suspect is located on the property
- To conduct a breathalyzer test
- To serve legal documents or notices
- When there is a seriously injured person on the premises
- To search for evidence that they reasonable suspect will be otherwise destroyed or hidden
- To reach a crime scene
- 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:
- Illegal drugs or paraphernalia
- Stolen property
- Graffiti instruments
- Housebreaking or car stealing instruments
- Something you intend to harm yourself or others with
- Evidence of drinking alcohol in a public place
- 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.
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.