In Queensland the general rule is that police are not allowed to enter your premises without a warrant. However, there are exceptions which are discussed below.
Entering your premises without a warrant
Police Powers and Responsibilities Act 2000 sets out the procedures that police must follow to enter a premises without a warrant. Police may enter your property without a warrant, only for a reasonable period of time to do the following:
- To serve a legal document
- To administer a breath test
- If a person has been seriously injured
- To search for evidence they reasonably suspect will be destroyed or hidden
- To arrest someone
- To reach a crime scene
- To detain someone under anti-terrorism ‘preventative detention order’
- To verify the identity of a reportable offender
Police also have extended powers when investigating domestic violence matters to enter and search premises.
The police do also have powers to enter and search your premises if the officer reasonably suspects there is evidence in relation to a particular offence (including an indictable offence) that may be concealed or destroyed unless the place is immediately entered and searched. They are then required to apply for a post-search approval order as soon as reasonably practicable.
If you have been intercepted by police in a motor vehicle, and they reasonably suspect one of the prescribed circumstances listed in the relevant legislation (section 30 of the Police Powers and Responsibilities Act 2000 (Qld)) apply, they do have the power the search your vehicle. They have similar powers to search a person if they reasonably suspect one of the prescribed circumstances apply. The list of prescribed circumstances include that a person has a weapon, knife or explosive, an unlawful dangerous drug, stolen property or tainted property. The list of prescribed circumstances is lengthy and whether a reasonable suspicion exists will depend on the particular facts of each case. You are entitled to challenge the basis of that reasonable suspicion and there have been many decisions published by the various Courts in relation to this issue which we will not explore in this article.
Entering your premises with a warrant
If police have entered your premises to execute a search warrant, you have the right to see the warrant and you are able to point out any details that may be incorrect. Along with the warrant, police must also give you a statement of their powers under the warrant. Powers that are given within a warrant can include:
- Detaining anyone present
- Removing wall panels, floor panels and ceiling panels to search for evidence
- Taking photos of items that may be seized for evidence
- Digging up your yard
- Opening locked areas such as a safe, filing cabinet or cupboard, and
- Searching anyone on the premises
- An order of a Magistrate to require a person to provide any necessary information to allow access to a stored device (ie – require you to provide the PIN/password to your phone)
The police cannot damage a building’s structure unless the warrant was issued by the Supreme Court and is clearly stated as a term of the warrant. You should be mindful that the police officers will record the execution of the search warrant, including any interactions they have with persons present. It is important to remember your fundamental right to silence. It is recommended you obtain legal advice as soon as practicable and not answer any of their questions without speaking to a lawyer first to protect your interests.
If police have damaged your property while they were conducting a search, it does not mean that you will be compensated for it, as it depends on the terms of the warrant. Police also do not have any obligation to clean and/or fix property after they have executed a search warrant.
What can the police take during a search?
The police can seize your property if it is evidence that can support a criminal charge against you. These items include things such as drugs, stolen property, weapons, phones, computers and/or clothing items. Your vehicle may also be seized if the police suspect that it had been used to commit an offence. For all items that police have seized, they must provide you with a receipt of what has been taken.
If you are found guilty of an offence, the Court will generally make an order to destroy any property that was seized that is the subject of any of the charges. If the property seized will not be used as evidence, it will be returned to you, generally 28 days after any court matters have finalised.
This post contains general advice only and is not intended as legal advice.