When Police Can Enter Private Premises (Vic)
There are three ways police are authorised to enter private premises in Victoria: with the occupier’s consent, with a warrant, and with a right under statute or common law. This article explains the circumstances in which police can enter a premises with and without the occupier’s consent.
To enter and search with consent
Section 264 of the Victoria Police Act 2013 sets out the right of the police officer and the procedure to be followed.
If an officer reasonably believes a person is committing or has committed a serious offence and the officer has consent to enter the property, they can search the premises and seize anything they consider to be connected to the offence. This seizure right extends to documents, allow an officer to:
- require a document to be produced;
- examine, copy or take extracts from the document;
- remove the document to make copies of take extracts from it.
A police officer cannot enter and search any private premises unless, before occupier consent is given, the officer has:
- produced their police identification; and
- informed the occupier:
- of the purpose of the search;
- that the occupier can refuse consent to a search and seizure of property;
- that the occupier can refuse consent to the taking of samples or the copying of documents found during a search;
- that anything seized or taken during the search can be used as evidence in court.
The officer must ask the occupier to sign an acknowledgement that the officer showed identification and provided the information listed above. That acknowledgement must also state that the occupier consented to the entry and search, and the date and time of that consent. If the occupier consents to the seizure of taking of anything during a search, the officer must ask the occupier to sign an acknowledgement. If a signed acknowledgement is not provided to a court or tribunal during a proceeding, it must be presumed the occupier did not consent to entry and search or to the seizure or taking of anything.
To execute a warrant
A police officer can enter premises to execute a search or arrest warrant.
Under section 267 of the Act, a police officer can apply to a magistrate for a search warrant if the officer reasonable believes there is, or will be in the next 72 hours, on a private premises or in a vehicle, evidence of a relevant offence.
Under section 64(1)(a) of the Magistrates’ Act 1989, a police officer can enter private premises to arrest a person if the officer has a warrant. The warrant allows the officer to break, enter and search any place where the person named in the warrant is suspected to be, and arrest that person.
Conditions of a warrant
A warrant allows a police officer to enter private property legally but the warrant places limits on the officer’s powers.
To be valid, a search warrant must state:
- the purpose of the search and the nature of the alleged offence;
- any conditions on the warrant;
- whether entry is authorised at any time or during specific hours;
- the day, not later than 28 days after the issue of the warrant, on which the warrant ceases to have effect.
In executing a search warrant, the officer must announce that they are authorised by the warrant to enter the premises, and give any occupier the opportunity to allow entry. These requirements are waived and immediate entry is permitted if the officer reasonably believes the safety of a person is at risk or the effective execution of the warrant could otherwise be frustrated.
The officer must identify themselves to any occupier and provide them with a copy of the warrant.
To locate an offender
Under section 459A of the Crimes Act 1958, a police officer can enter and search a private premises without a warrant if they reasonably believe a person who has committed a serious indictable offence or an offence elsewhere equivalent to a serious indictable offence in Victoria, or who is escaping from legal custody, is at that premises. A serious indictable offence is an offence punishable on first conviction with a prison term of five years or more.
Under this section, the officer is permitted to use reasonable force to enter the premises.
To prevent family violence
Under the Family Violence Protection Act 2008, a police officer can enter a private premises without a warrant if they reasonably believe family violence is occurring or has occurred, or a person there has breached an intervention order or family violence safety notice.
To stop a breach of the peace
A police officer can enter a private premises without a warrant to stop a breach of the peace, such as to break up a fight or stop excessive noise.
For advice or representation in any legal matter, please contact Armstrong Legal.