Personal Searches (Vic)
Police in Victoria have the authority to conduct personal searches under several Acts, including the Control of Weapons Act 1990 and the Drugs Poisons and Controlled Substances Act 1981. There are rules police must follow in carrying out a personal search, regardless of whether there is a warrant or not.
This is when a police officer run their hands over the outside of a person’s clothing. The officer can pat down a person in public or in private. They can ask a person to empty their pockets or remove their jacket, or to present an item they believe is a weapon.
The officer who conducts a pat-down search must be of the same sex as the person being searched (unless this is not reasonably possible), make a written record of the search and provide the person with a receipt for anything taken from them.
This is when a police officer removes and searches all of a person’s clothing. It is usually done when pat-down search does not produce results. There are strict rules for the carrying out of a strip search, including that it must be done:
- in a private place, which is usually a police station;
- by a person of the same sex;
- in the presence of a parent, guardian or independent person if the person to be searched is a child or someone who has a cognitive disability or mental illness.
Internal body search
An internal body search is a forensic procedure which must be conducted by a doctor of the same sex as the person to be searched. It requires samples to be taken from a person’s body. It can be conducted only by consent or by court order.
Control of Weapons Act
If a police officer suspects a person is carrying a weapon in a public place, the officer can search the person without a warrant. The officer can detain the person for a long as is reasonably necessary to conduct the search. The officer must:
- inform the person of their suspicion before searching them;
- state their name, rank and place of duty;
- produce identification if not in uniform;
- conduct the search in the least invasive way possible in the circumstances.
A protective services officer (someone who protects people in official or public places) has the same powers if the officer is on duty at a designated place, such as a railway or car park.
A weapon may be a gun, a knife, an item that has been modified so it can be used as a weapon, or an item carried with the intention for it to be used as a weapon.
A police officer also has the power to stop and search a vehicle for weapons, without a warrant, if the vehicle is in a public place and there is a person in or on the vehicle.
A magistrate can grant a search warrant to police if they are satisfied by evidence from police that there is reasonable ground to suspect an offence has been or is being committed on a premises. The warrant can authorise police to enter a specified premises at any time day or night, by force if necessary, to search the premises and every person in it.
Drugs Poisons and Controlled Substances Act
Police can search a child and any vehicle, without a warrant, if an officer reasonably suspects the child possesses a “volatile substance”, such as petrol, solvent, glue, or aerosol propellant, or an item used to inhale the substance, or the child is inhaling or will inhale the substance. Police can also search a person and their vehicle if the officer suspects the person intends to supply a child with a volatile substance or an item to inhale it. Before initiating a search, the officer must ask the person to produce the substance or item the person is suspected of possessing.
The officer must state their name, rank and place of duty, and produce identification if not in uniform. These requirements do not apply if the officer reasonably believes the person cannot understand the information because of the effects of inhaling the volatile substance, or if it is otherwise impracticable to do so.
A magistrate can grant a search warrant to police if they are satisfied by evidence from police that there is reasonable ground to suspect an offence has been or is being committed on a premises. The warrant can authorise police to enter a premises and any vehicle there; and search the premises, any vehicle and any person found in them, at any time day or night, by force if necessary.
A police officer can search a person in a public place, without a warrant, if the officer reasonably suspects the person possesses a drug of dependence or a psychoactive substance. A protective services officer can exercise the same power in a designated place.
For advice or representation in any legal matter, please contact Armstrong Legal.