Powers To Search
Police in the Australian Capital Territory have powers to search a person and property under the Crimes Act 1900.
Search of a person
Under Section 207 of the Act, a police officer can stop, detain and frisk a person if they believe on reasonable grounds that:
- the person has a item relevant to a serious offence or an item that has been stolen; and
- the action is necessary to prevent the item from being hidden, lost or destroyed.
If an item is found, the officer can seize it. The officer can also seize any other evidence if this is necessary to prevent that evidence from being hidden, lost or destroyed, and the circumstances are serious and urgent enough to seize the evidence without the authority of a warrant.
A frisk search may only be carried out by a person of the same sex, and as soon as possible after the action, the police officer must make a written record of the search, including the date, time, place, details of the person searched and the grounds for the search.
A search warrant authorising a search of a person can be issued if an officer swears there are reasonable grounds for suspecting the person has, or will have, an item relevant to a serious offence, evidence of an offence, or tainted property in their possession. The warrant must authorise the seizure of the item, evidence or property.
Search of a vehicle
Under Section 209 of the Act, “conveyances” can be stopped and searched for the same reason as a person can, and the relevant item and any other evidence can be seized. “Conveyances” include a car, caravan, trailer, earthmoving equipment, bicycle, motorcycle or boat. Police also have the right to search any container in or on the conveyance. They can use force that is necessary and reasonable in the search, but must not damage the conveyance or any container in or on it unless the person in charge of the conveyance has had an opportunity to open the part or container or that opportunity is not possible.
Search of a property
Under Section 194, a warrant can be issued to search a premises if an officer swears there are reasonable grounds for suspecting there is, or will be, evidence at the premises. However, a warrant must not authorise a search at any time between 9pm and 6am unless it would not be practicable at another time, or it is necessary to do so to prevent the concealment, loss or destruction of evidence.
Under Section 227, a strip search can be conducted at a police station if a police officer suspects on reasonable grounds that a person has a seizable item or evidence in their possession, or that a visual inspection of the person’s body will provide evidence of their involvement in an offence.
A police officer of the rank of superintendent or higher must approve the search. A person can consent in writing to a strip search and the search may be conducted in the presence of a doctor, who can help in the search. Necessary and reasonable force can be used.
Strip searches must be done in a private area and by a police officer of the same sex as the person being searched, and out of the presence or view of a person of the opposite sex.
Strip searches must not be conducted on a person who is aged under 10. If the person being searched is at least 10 but under 18, or is incapable of managing his or her affairs, a strip search can be conducted only if the person has been arrested and charged or by court order, and the search must be conducted in the presence of a parent or guardian.
Strip searches must not involve:
- searching a person’s body cavities;
- the removal of more garments than reasonable necessary;
- more visual inspection than reasonably necessary.
If no police officer of the same sex is available to conduct a strip search, any other person of the same sex can be requested by police to conduct the search.
Under Section 230, a police officer can take “identification material”, meaning a person’s fingerprints or photographs of the person.
Only a police officer of the rank of sergeant or higher can take identification material. If the person being identified is not in custody for an offence, they must give written consent before identification material is taken, or if the person is in an impaired state, identification material may be taken in the presence of a parent, guardian, domestic partner or adult acceptable to the person. If the person being identified is in custody for an offence, the officer taking the identification material must believe on reasonable grounds that the person has committed an offence. Police can only take identification material from a person under 18 under an order from a magistrate.
For advice or representation in any legal matter, please contact Armstrong Legal.