A common question that arises in a criminal case is whether the police had the power to search someone’s person, or their house or car. If the police did not have the power to search a person, vehicle or house, any evidence obtained from the unlawful search may be inadmissible.

The police have various powers to search contained in different laws. Some of the commonly seen pieces of legislation granting police search powers in criminal matters are the Criminal Investigation Act, Misuse of Drugs Act, Weapons Act and Restraining Orders Act.

Powers to search in the Criminal Investigation Act

Search with occupiers consent

The starting point with these powers is the police can search any ‘place’ (meaning a building and associated land) with the ‘informed consent of the occupier of a place’. This includes the owner of the place and any person with occupier’s rights, such as a tenant. There is no need for a search warrant. This is why police commonly ask whether an occupier will consent to a search.

Search without a search warrant

The police can enter and search a place or vehicle if they reasonably suspect that any of the following is occurring or just about to occur in the place or vehicle:

• An act  by a person –

1. 1. involving or likely to involve the use of violence against a person;
   2. that is likely to cause a person to use violence against another person; or
   3. That is likely to cause a person to fear violence will be used by a person against another person.

• Any other breach of the peace by a person;
• An act by a person that will kill or is likely to kill a person or cause serious injury to a person; or
• An act by a person that will or is likely to cause serious and unlawful damage to property.

The police can also stop and search the vehicle in order to prevent any of the above from occurring.

A police officer who enters a place or vehicle using these powers may seize a thing relevant to an offence and do a forensic examination on it. This is so whether or not the offence (to which the thing relates) arises out of the circumstances that caused the officer to enter the place or vehicle.

The police can enter a place or vehicle to attend to a dead or seriously ill or injured person. This includes to ascertain the facts relevant to the injured person.

The police may enter a place or vehicle to investigate a ‘serious event’, which means a fire, explosion or the presence of any article, substance or gas likely to endanger the safety of people or cause serious damage to property.

The police may enter a place or vehicle if they reasonably suspect an out-of-control gathering is occurring in the place or vehicle.

The police may search a place if they reasonably suspect that a serious offence has been or is being committed in a place, or that there is in a place a thing relevant to a serious offence. ‘Serious offence’ means an offence with a maximum penalty of 5 years imprisonment or more.

The police may search a vehicle if they reasonably suspect it is necessary to do so to prevent the vehicle from being used to commit an offence, or to enable an offender to leave the place where an offence was committed, or to avoid being arrested. They may also search a vehicle to prevent damage to it.

Search with a search warrant

The police may apply to a JP (Justice of the Peace) for a search warrant, if they suspect an offence has or may be committed, and it is desired to search the place for a thing or person relevant to the offence. The JP may issue a search warrant if satisfied there are reasonable grounds for each of the suspicion(s) of the police officer who applies for the warrant. This includes, Eg, the suspicion that an offence has been committed, and the suspicion that a place may contain a thing or person relevant to that offence.

A search warrant relates to a place (not a vehicle) but also allows an officer executing it to enter a place near the target place for various different purposes.

If a vehicle is located in the place, Ie in the driveway or garage of the target house, the search warrant authorises the police to search the vehicle as it is located in the place the subject of the search warrant.

A search warrant has effect according to its contents and comes into force when issued by a JP. It is important to read the terms of the search warrant to ascertain if the search in a particular case was allowed by the search warrant.

There are various laws concerning when a search warrant may be executed, and whether a copy of it should be provided to the occupant.

If reasonably practicable, an audiovisual recording must be made of the execution of a search warrant.

Searching a place with a search warrant has the advantage of being a lawful search as long as the terms of the warrant are complied with. By contrast, in any case where there is a search without warrant, there is likely to be a challenge to the validity of the search as it relies on disputed evidence as to whether the officer held the relevant reasonable suspicion.

Other search powers

Police may also apply for an ‘order to produce’, which allows the police to obtain access to business records. They may also apply for a ‘data access order’, which allows them to obtain access to a suspect’s mobile phone.

Search powers under other legislation

Misuse of Drugs Act 

There are various powers allowing police to search places and vehicles for things related to drug offences in the Misuse of Drugs Act. This includes powers to search without a warrant, and with a search warrant issued under the Act. The power to search a place or vehicle includes a power to detain and search any person located in the place or vehicle.

Weapons Act

Police may without a warrant, under the Weapons Act, stop detain and search any person or vehicle if they suspect on reasonable grounds there is a weapon on the person or in the vehicle, or that the person is committing a weapons offence. This could mean, for example, that police might have the power to search a vehicle being driven by a person with recent weapons act convictions. There is also the ability to apply for a search warrant to search a place under the Weapons Act.

Restraining Orders Act

Police may, without warrant, enter a premises if they reasonably suspect a person is committing family violence inside, under the Restraining Orders Act. They may also search any premises entered on this basis if they reasonably suspect it is necessary to search the premises to establish whether any person on the premises is in need of assistance, or is in possession of a weapon, and may seize any weapons found.

Police also have the power to enter a place to seize firearms held by a person subject to an FVRO or VRO, if they do not give up possession of said firearms.

As can be seen, the search power under the restraining orders legislation is fairly limited and it is important to scrutinize if police have exceeded their power if they are relying on this act as a basis to search a premises.

Conclusion

There are many and varied powers given to police officers to search people, places and vehicles. In a given case, it is important to identify what law the police have relied upon for a search, and whether they have operated within the powers granted to them by that law. If a search is unlawful, it may be that anything found by police pursuant to that search is inadmissible. This can have an important impact on the outcome of a criminal case, depending on what the police found pursuant to the unlawful search.

If you require expert advice as to the lawfulness of a police search in your case, don’t hesitate to contact James Jackson Criminal Defence today.