Search Warrants (Vic)
A search warrant is a written authority issued by a court, which authorises the police to enter the premises or vehicle named in the warrant and conduct a search. There are also some circumstances under which police may search premises without a search warrant. This article outlines the law around search warrants in Victoria.
Victorian legislation that governs the issue of search warrants includes section 465 of the Crimes Act 1958, section 6 of the Magistrates Court Act 1989, section 81 of the Drugs Poisons and Controlled Substances Act 1981, Section 6 of the Terrorism (Community Protection) Act 2003 and Section 3E of the Crimes Act (Commonwealth) 1914.
Searches without a warrant
If the police do not have a search warrant, they can come onto the premises or into a car to conduct a search only if:
- The occupant consents to the search;
- The police believe a serious offence is being, will be or has been committed;
- The police believe that drugs are in the premises or car;
- A fight is in progress;
- If an intervention order has been breached.
If the police want to search a house or a car under any other circumstances, they must apply for a search warrant.
Application for a Search Warrant
An application for a search warrant may be made under section 465 of the Crimes Act 1958. The application must set out the general nature of the offences that the warrant relates to as well as the reasons that the police have for believing that they will find evidence of that offence on the premises or vehicle.
A warrant under this provision must be sought by a police officer who is of the rank of Senior Sergeant or higher. The officer must satisfy a Magistrate that there are reasonable grounds to believe that there is (or will be within the next 72 hours), something that is connected with an indictable offence that has been or may be committed or anything that can be used as evidence of the commission of any criminal offence.
If the police wish to search any person on the premises or in the vehicle, they must get the Magistrate’s approval.
The Magistrate may endorse the warrant with conditions for the grant of bail for any person arrested when the warrant is executed. If a warrant is issued, then the court must record the reasons why it was granted. If this is not done, the warrant is invalid. A search warrant can be valid for a period of up to 7 days and can be extended by a magistrate.
Section 81 of the Drugs, Poisons and Controlled Substances Act 1981 allows a magistrate to issue a warrant for the search of any land, premises or vehicle if there are reasonable grounds for believing that they will find:
- A thing in respect of which an offence has been committed under the Drugs, Poisons and Controlled Substances Act 1981 or under the Drugs, Poisons and Controlled Substances Regulations;
- Evidence of the commission of a drug offence;
- Documents relating to a transaction that amounts to an offence under the Drugs, Poisons and Controlled Substances Act 1981.
Such a warrant will allow the police to seize any such thing that is found to be brought to court.
When a search warrant is issued for ‘drug premises’, the police are given extra powers under the search warrant. Drug premises are premises which are believed to be used for the making or selling of drugs
Only police officers with the rank of sergeant or higher can apply for search warrants under the Drugs, Poisons and Controlled Substances Act. These warrants are valid for 1 month after the date that they are issued. They authorise police to use force to enter the premises or vehicle and to search them and any persons found on the premises.
Covert Terrorism Protection Warrants
Section 6 of the Terrorism (Community Protection) Act 2003 allows the Supreme Court to issue a search warrant where there are reasonable grounds for suspecting that:
- A terrorist offence has been, is being or will be committed;
- A person who lives at the premises has done an act in preparation or planning for a terrorist offence or has provided or receive training in connection with a terrorist act;
- There has been or is activity on the premises connected with planning or engaging in a terrorist act;
- The search would substantially assist in preventing or responding to the terrorist act.
If the warrant is approved, the police may enter and search the premises without giving any notice to the owners and occupiers of the premises and may cover up any evidence that they have been there.
Commonwealth Search Warrants
Under section 3E of the Commonwealth Crimes Act 1914, a magistrate or JP may issue a search warrant where they are satisfied on reasonable grounds that there is likely to be evidential material at the premises.
Applications are made to a Magistrate in the Commonwealth Court for the issue of a Commonwealth search warrant. This authorises a search for evidence and must be executed within 7 days after it is issued. The police must let the Magistrate know if they think they need to be armed with a weapon when they carry out the search, and they can only be armed if the Magistrate authorises this.
Executing a Search Warrant
When the police execute a search warrant (that is not a covert search warrant) they must state that they have a search warrant and are at the premises to conduct a search, unless this is likely to cause a risk to the safety of a person or to the evidence they are searching for.
Once the police have demanded entry with a valid warrant, they are allowed to enter the premises. If entry is refused by the occupant, then they are allowed to use reasonable force to enter the premises.
Obstructing police when they are executing a search warrant is a criminal offence. Entry can only be refused by the occupant if the premises are not those named on the warrant or where the time or date on the warrant has passed.
The police may videotape the search. Searches cannot be conducted at night unless the magistrate who issued the warrant has specifically authorised this. At the end of the search, the police officer who executed the search warrant must give the occupier a list of any items the police have taken.
Notice to Occupier
When the police execute a search warrant, they must give to a person who is at the premises or who is in charge of the vehicle, a copy of the warrant. A copy must also be given to any person who the police have searched under the warrant.
Searching people during the execution of a search warrant
The police may search any person who is identified on the warrant, and must also give to them a copy of the warrant. Police do not have the power to question or interview persons while they are executing the search warrant. However, a search may be videotaped and if this occurs any conversation that takes place during the search will be recorded and may be used as evidence.
The police must report back to the Magistrate with the items seized. The Magistrate will then decide what will happen to those things. Orders can be made that the items be kept for evidence, returned to their owners, destroyed, or whatever the Magistrate determines should occur in the interests of justice.
Failure to follow correct procedure
If the correct procedure is not followed for either the issue or execution of a search warrant then the court may rule that the warrant, and therefore the search, was unlawful. If this occurs, then any evidence the police collected during the search is likely to be ruled inadmissible as evidence. An unlawful search may also give rise to a civil claim against the police by the owner or occupier of the premises.
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