It can be distressing to be the subject of a police investigation or search, particularly if it takes place in your home.
Although police have certain powers to stop and search you or your property without a warrant, if they do have a warrant, it’s a criminal offence to obstruct them in their search, even if you believe it’s unjustified.
Even if police have a search warrant, there are still rules and regulations they must abide by, and you still have certain rights.
Being aware of these rights can help you ensure that you are treated fairly and that illegally obtained evidence isn’t used against you in a criminal matter.
What is a search warrant?
A search warrant is a court-issued document which gives police permission to enter your home and conduct a search of the premises and any other areas specified in the warrant. In order to be granted a search warrant, there must be a tangible reason for police to suspect that there may be illegal items such as drugs, firearms or stolen goods on your property.
If police officers want to search your home, they will need to first apply to a magistrate for a search warrant. There are a number of criteria they have to fulfil including:
- Reasonable grounds to believe that there is evidence at your property in connection with an indictable offence, or
- Reasonable grounds to believe that there is something that is intended to be used to commit an indictable offence.
Search warrants can cover vehicles as well as buildings and any other receptacles on or around the property.
The process of obtaining a search warrant
An application for a search warrant can be made by a police officer or other law enforcement offence to a magistrate, judge or other authorised person.
The application must be in the prescribed format and detail the grounds upon which the warrant is sought, which must be reasonable.
There are five main types of warrants that apply to searches in New South Wales:
- A general search warrant for a ‘searchable offence’;
- A criminal organisation search warrant;
- A suspected drug premises search warrant;
- A covert search warrant; and
- A Commonwealth search warrant.
Each of these search warrants have their own criteria which must be satisfied in the application for the warrant.
For example, section 62 of the LEPRA states that in application for a general search warrant, police must include:
- the name of applicant and details of authority to make application;
- particulars of grounds on which application is based including the nature of the searchable offence or other offences involved;
- the address or other description of the premises;
- if searching for a particular thing a full description of that thing and if know its location;
- if searching for a particular kind of thing a full description of the kind of thing;
- if a previous application for the same warrant was refused details of the refusal and any additional information required; and
- any other information required by the regulations.
Certain major errors in the application and/or issuing of a search warrant may render the warrant invalid. For example, failing to specific an offence in which the search related (see Douglas v Blackler(2001) NSWSC 901).
However, more minor errors, such as putting the wrong year for the legislation referenced (see NSW v Corbett (2007) HCA 32 NSWCA) will not sufficient to render a search warrant invalid.
Are police allowed to enter my home without a warrant?
Police are allowed to enter your home without a warrant in certain limited circumstances.
- If they believe a person inside your home has suffered a significant
physical injury or is about to suffer a significant physical injury,
- If it is necessary to prevent a breach of the peace, and
- If it is necessary to effect an arrest because they suspect on reasonable grounds that you are committing an offence.
If they enter without your permission without valid cause they are breaking the law.
If police enter your home for any of the reasons above they are only allowed to remain for as long as necessary to deal with the situation.
If you have invited them in they are required to leave if you ask them to, unless there is a situation involving domestic violence when they can remain if the alleged victim requests it.
Even though police may be allowed to enter your home without a warrant in certain circumstances, they are not allowed to search it without reasonable grounds to believe that there is something illegal or that is connected with an indictable offence on the premises.
Can I ask to see their warrant?
Police are required to show you the warrant to search your property if you request.
Regardless of whether you ask to see their warrant or not, they are required to serve you with an occupier’s notice setting out the details of the warrant.
The warrant should state clearly the offence which it relates to and what the police are searching for as well as what areas of your property or vehicles are covered under the warrant.
Police are only allowed to search the areas specified for the items they are specifically looking for.
They are not allowed to speculatively search for other possible items, for example drugs, unless it’s specified on the warrant that they are there to look for drugs.
Police are not allowed to conduct searches at night unless they have specific permission on the warrant.
Can I try to stop police searching my property if they have a warrant?
If you try to obstruct police in their search and they have a warrant you could face criminal charges.
Police are allowed to use force to enter premises where they have a warrant, if they can’t get in by any other means.
It is an offence to obstruct or assault a police officer who is lawfully trying to search your premises.
If you are charged with this offence, you could find yourself facing court and a criminal record.
If you are concerned that police have acted inappropriately while conducting a search of your property, it’s a good idea to speak to a criminal defence lawyer.
Any evidence against you which was obtained without the proper procedures may not be admissible in court, and you may be able to have the charges against you dismissed in court and get an order forcing police to pay your legal costs.