What rights do police have to search and seize my property?

1. Searches of premises

Generally under the law, occupiers of premises have a right to exclude other people from entering their premises, and if a person enters premises without the occupier’s consent, they are trespassing.

However, an occupier’s right to exclude others may be overridden in some circumstances, including where police officers have a right to enter the premises to conduct a search and to seize property.

When do police have a right to enter and search premises?

Some police officers have a general search warrant, which allows them to enter and search any house, building, premises or place where there is reasonable cause to suspect that:

• an offence has been, or is about to be, committed
• stolen goods are present
• evidence of an offence is present, or
• items intended to be used to commit an offence are present

If a police officer requests to enter and search your premises, you should ask them to see their search warrant and their identification.

If they do not have a search warrant, you are not required to allow them to enter or search your premises. However, they may enter and search if you consent to them doing so.

What can police officers search inside premises?

Under the relevant legislation, police officers have very broad powers as to the conduct of their search if they have a ‘reasonable cause to suspect’ any of the four points above.

During their search of premises, they may look in cupboards, drawers, chests, trunks, boxes, packages, and other like items. They may also break or open these items if necessary to conduct their search.

You are not required to provide police officers with the password to any electronic device they seize under a general search warrant, including a mobile phone or computer.

2. Searches of vehicles, vessels and people

When do police have a right to search vehicles, vessels and people?

If a police officer has a general search warrant, they may search a vehicle, vessel (including a boat) or person where there is reasonable cause to suspect that:

• stolen goods are present
• there is an object present which it is an offence to possess (e.g. drug paraphernalia), or
• evidence of an indictable offence is present

3. Reasonable cause to suspect

Police officers need to have more than a hunch for it to be said that there is a ‘reasonable cause to suspect’ any of the dot points above. Usually, there must be some fact or evidence which supports a police officer’s suspicion for it to be ‘reasonable’.

If a police officer does not have reasonable cause to suspect one of the dot points above, and they conduct a search anyway, the search will be unlawful and any evidence they obtained during the search may be excluded by the Court. In deciding whether to exclude the evidence, the Court must consider the nature of the police officers’ impropriety, whether it was deliberate or accidental, whether it could easily have been avoided, the seriousness of the crime charged, and the effect of the police officers’ impropriety on the person charged.

4. Seizure of property

Police officers may seize items they find during their search. They must provide you with a receipt of any items they seize.

If police officers are conducting a search under a general search warrant, they may even seize items which do not relate to the offence they suspected or otherwise commenced searching in relation to. For example, if police officers searched premises under a general search warrant for a stolen bicycle and during their search located cannabis, they have the power to seize the cannabis.

Johnston Withers Lawyers: Experience You Can Trust

Johnston Withers Lawyers have experience assisting clients with criminal matters, including dealing with police and applying for evidence seized by police to be excluded. If you would like advice or representation, contact us on (08) 8231 1110, or get in touch online.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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