Search Warrants (Qld)

A search warrant is an official document that gives police the power to search you, your property or your vehicle. Under the Police Powers and Responsibilities Act 2000, in some circumstances, police are authorised to conduct a search without a warrant.

Searching private property

Police can search a person’s property by invitation or consent. Under the Act, a police officer is permitted to enter private property without the occupier’s consent in specific situations. These include to:

• investigate or inquire about a matter or serve documents;
• arrest or detain a person, and the officer reasonably suspects the person is in the building;
• search under a search warrant;
• search to prevent the loss of evidence;
• prevent or stop harm to a person, damage to property or domestic violence;
• ensure compliance with other laws;
• stop excessive noise.

Police should state the basis for the search. The search powers are broad so an occupant must take care not to risk being charged with obstructing police. If the occupant believes the police do not have a specific right to enter the property, they should clearly state that:

• they are not inviting the police in; and
• they do not consent to the police remaining on any part of the land or property.

The occupant should also record the names of any witnesses who see or hear the refusal of consent.

Obtaining a warrant

Under the Act, in most situations, to obtain a search warrant, police must apply to a Justice of the Peace (JP). In relation to a confiscation or forfeiture proceedings, or where structural damage is likely, the application must be made to a Supreme Court judge. The JP or judge must be satisfied there are reasonable grounds to suspect a crime is being, or will be committed, within the next 72 hours, on the premises to be searched. A warrant is valid for seven days unless stated earlier.

The warrant should state the powers it grants police, such as:

• detaining or searching a person on site;
• seizing evidence or taking photos;
• accessing safes, locked cabinets or restricted areas;
• removing parts of a floor, wall or ceiling, or digging up garden or lawn.

The occupant of the premises should insist on seeing a copy of the warrant and ensure the details are correct. They should also be aware that police can enter the property (with or without a warrant) and stay for a “reasonable time”, which is the time required to ask questions and make reasonable observations or investigation. If the warrant is to be executed at night, it must specify the time range.

If police seize property as evidence, the property owner should obtain a receipt for the items. The property should not be held for more than 30 days, unless the owner is served with a court notice.

Mobile phones

It is becoming common for mobile phones to be seized during searches. Under the Act, if a phone is seized under a search warrant, it is an offence to refuse to give police the password or PIN code to it. This includes passwords to social media accounts such as Facebook and WhatsApp. If there is no search warrant, a person does not have to consent to police looking at or taking a mobile phone.

Searching people

Police can stop, search and detain a person without a warrant in some situations.  This includes when an officer reasonably suspects a person has in their possession:

• an unlawful weapon, knife or explosive;
• an unlawful dangerous drug;
• stolen or tainted property;
• evidence of an offence punishable by at least seven years imprisonment;
• an implement used for housebreaking, vehicle theft, or administration of a dangerous drug;
• an item intended to be used to cause harm.

An officer can conduct a frisk search by running their hands over the outside of a person’s clothes, but the officer must have evidence of a reasonable suspicion before conducting a search. They must also follow rules when searching a person, including:

• respecting the person’s dignity;
• minimising embarrassment to the person;
• limiting a public search to a frisk search, if possible;
• engaging a police officer of the same sex to conduct the search, unless an immediate search is necessary.

Searching vehicles

Police can stop and detain a vehicle and any occupants, and search the vehicle without a warrant in some circumstances. This includes when an officer reasonably suspects the vehicle contains:

• an unlawful weapon, knife or explosive;
• an unlawful dangerous drug;
• stolen or tainted property;
• graffiti equipment;
• evidence of a serious offence;
• an implement used for housebreaking, vehicle theft, or administration of a dangerous drug;
• an item intended to be used to cause harm.

Police can also stop, detain and search a vehicle:

• to arrest an occupant;
• if they reasonably suspect the vehicle is being used unlawfully;
• if they reasonably suspect the vehicle is being used by, or in the possession of, someone from a criminal organisation.

For advice or representation in any legal matter, please contact Armstrong Legal.