Search Warrants (WA)
A search warrant is an official document that gives police the power to search you, your property or your vehicle. A search warrant can be issued under legislation including the Criminal Investigation Act 2006, Misuse of Drugs Act 1981, Criminal Property Confiscation Act 2000, Firearms Act 1973 and Weapons Act 1999. Judges, magistrates and Justices of the Peace (JPs) are authorised to issue search warrants, but JPs cannot issue certain types of warrants.
Searching private property
Police can search a person’s property by invitation, informed consent, or with a search warrant. A police officer is permitted to enter private property without a warrant or the occupier’s consent in specific situations. These include:
- to prevent violence against a person or serious damage to property;
- to attend to a seriously ill, injured or dead person;
- to deal with an out-of-control gathering;
- to look for a person who possesses something relevant to an offence;
- while a person is under arrest for a serious offence;
- when family violence is suspected;
- when police suspect there is or has been a serious event such as a fire, explosion or presence of a substance dangerous to health and need to act urgently.
Police must identify themselves and state the legal basis for the search. Police 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.
They should also record the names of any witnesses who see or hear the refusal of consent.
Executing a warrant
The search warrant must state the details of the property, person or item, and the grounds on which the police believe an offence has been or may be committed. A warrant generally can be executed between 6am and 9pm only, unless a person is likely to be placed in danger, or the search’s effectiveness will be jeopardised, if it is conducted during these hours.
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 police seize property as evidence, the 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.
A search warrant also grants police ancillary powers to enter but not search a place near the search site, for reasons including to prevent a target thing from being concealed or disturbed, or to protect the safety of a person in or near the search site. For these powers to be exercised, written approval must be given by a senior officer not involved with the investigation.
After a warrant is executed, the police officer should record their details on the warrant, and the date and time it was executed.
Police can stop, search and detain a person without a warrant in some situations. This includes:
- when a person is committing an offence;
- to look for a “thing relevant to an offence” such as a thing that:
- has been, is being or will be used to commit an offence;
- has been obtained from an offence;
- has led, is leading, or will lead to an offence;
- may prove an offence;
- may prove who committed an offence;
- may prove that an alibi is false;
- to enforce a prohibited behaviour order;
- to ensure the security of a public place;
- to protect intoxicated or young people;
- to look for proceeds of crime.
A police officer must:
- identify themselves;
- state the reason for the search;
- ask whether the person agrees;
- advise that the search will be carried out even if the person does not agree;
- advise that is an offence to try to prevent a search.
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.
Police can stop and detain a vehicle and any occupants, and search the vehicle without a warrant in some circumstances. These include:
- to prevent a vehicle from being used to commit an offence;
- to prevent a vehicle from being used to help commit an offence;
- to prevent a vehicle from being used to leave the scene of a crime;
- to prevent a vehicle from being used to help an offender escape arrest;
- to prevent damage to a vehicle;
- to protect someone in or near the vehicle;
- to prevent damage to the vehicle or someone else’s vehicle;
- to look for a suspect;
- to arrest someone for a serious offence;
- to ensure the security of a public place;
- to look for proceeds of crime;
- when the vehicle contains an item relevant to an offence;
- when the vehicle carries the victim of an offence;
- when police suspect there is or has been a fire, explosion or presence of a substance dangerous to health in the vehicle, and need to act urgently.
For advice or representation in any legal matter, please contact Armstrong Legal.