Police Searches

Under the Law Enforcement (Powers and Responsibilities) Act police have a number of different powers to conduct searches of people, vehicles, premises or vessels. However, Police can only conduct searches when the relevant pre-conditions are met and must also comply with a number of safeguards when conducting the search. These include introducing themselves, explaining they are conducting a search, telling the person the reasons for the search and conducting the search in a way that ensures privacy (insofar as is reasonable in the circumstances).  

When can police searches occur?

The situations where police may search a person are outlined below.

1. Stop, search and detain powers

Police can stop, search and detain a person and anything in their possession or under their control without a warrant in certain circumstances. To exercise the stop, search and detain powers, the officer must suspect on reasonable grounds that the person has in their possession either:

• Something stolen or otherwise unlawfully obtained.
• Something used or intended to be used in connection with the commission of an indictable, weapons, or firearms offence.
• Whilst in a public place, a dangerous article that is being or was used in connection with the commission of an indictable, weapons, or firearms offence.
• A prohibited plant or drug.

If the officer suspects on reasonable grounds that the item is concealed in the person’s mouth or hair, he or she may request that the person open their mouth and/or shake, or otherwise move, their hair. An officer cannot forcibly open a person’s mouth.

If the police have reasonable grounds and proceed to search a person, they may seize and detain all or some  of the items found while conducting that search if those items are illegal (e.g. prohibited drugs), have evidentiary value (e.g. clothing that is alleged to have been worn during an offence) or are reasonably suspected to contain evidence (e.g. a phone).

Seize and detain powers can also be exercised if a police officer who is lawfully on any premises (including vessels, vehicles and aircraft) finds a dangerous article on the premises and suspects on reasonable grounds that it is being or was used in connection with an indictable, weapons, or firearms offence.

To fail or refuse to comply with an officer’s request to search you, without reasonable excuse, is an offence attracting a maximum fine of $550.

2. Search powers in public places and schools

The police have the power to frisk search a person for blades and other dangerous implements (including a laser pointer) when they are in a public place or a school if they suspect on reasonable grounds that the person has such an item in their possession. The police may confiscate the implements found.

In a school, a student may be requested to allow police to search any bag or personal item that they are carrying and/or to search their locker at the school.

If it is reasonably possible to do so in conducting a search of a student in a school, the police must allow the student to nominate an adult at the school premises to be present during the search.

Failure to comply with lawfully made requests relating to such a search is an offence attracting a maximum penalty of $5,500.

3. Search upon arrest

A police officer may search a person at the time of arrest if they suspect on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything that:

• would present a danger to a person, or
• could be used to assist a person to escape from lawful custody, or
• is a thing with respect to which an offence has been committed, or
• is a thing that will provide evidence of the commission of an offence, or
• was used, or is intended to be used, in or in connection with the commission of an offence.

If the police proceed to search a person in such a situation, they may seize and detain any items found while conducting that search.

To fail or refuse to comply with an officer’s request to search a person, without reasonable excuse, is an offence attracting a maximum fine of $550.

4. Search while in lawful custody

A person may be searched while in lawful custody (whether at a police station or at any other place). The police may seize and detain anything found during that search.

5. Search warrants

Police can make an application for a search warrant. If granted, a search warrant will specify the address or place that can be searched, what the suspected offences are and what items are being suspected as being on the premises. The warrant authorises officers to enter the nominated premises to search for things connected with the particular offences specified by the warrant. It also gives the officer power to search any person found on the premises who is reasonably suspected of having a thing mentioned in the warrant.

In the case of an ordinary warrant, the occupier of the premises must be informed of entry as soon as reasonably practicable. A covert search warrant can be executed without the occupier’s knowledge.

A person executing a valid search warrant may seize and detain items mentioned in the warrant or any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence.

It is an offence to obstruct or hinder the execution of a warrant attracting a maximum penalty of a fine of $1,100, two years imprisonment, or both.

6. Crime scenes and crime scene warrants

If a crime has occurred on a premises a police officer lawfully on that premises may establish a crime scene. They can then exercise certain crime scene powers without a warrant for up to three hours.

Powers to search, seize and detain require the police suspect on reasonable grounds that it is necessary to do so to preserve, discover or gather evidence of the commission of the offence in connection with which the crime scene was established.

A crime scene warrant may extend the period for which crime scene powers can be exercised.

Crime scene powers include that the police may perform any necessary investigation to obtain evidence of the commission of an offence. This includes searching the premises and persons found on them.

It is an offence to obstruct or hinder the execution of a crime scene warrant attracting a maximum penalty of a fine of $1,100, two years imprisonment, or both. It is also an offence to fail to comply with a request made or direction given by a police officer at a crime scene attracting a maximum penalty of a fine of $1,100.