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Search Warrants - QLD

What is a Search Warrant?

A Search Warrant is an official document issued by a Justice, Magistrate or Judge entitling Police to enter the place listed on the Search Warrant and stay for a reasonable time necessary to search the premises of that place in order to locate the items listed on the Search Warrant.

The law that governs Search Warrants in Queensland is the Police Powers and Responsibilities Act, Queensland.

Under section 151 of the Police Powers and Responsibilities Act Queensland, the Police may obtain a Search Warrant where they can show there are reasonable grounds to suspect the commission of an offence or confiscation of related evidence at a certain place (or that there will be within 72 hours).

The Police have the following powers in order to effect their search:

  • (a) to detain any person at the place for a reasonable time;
  • (b) to search the person of anybody found at the place;
  • (c) to open anything that is closed or locked;
  • (d) to dig up land;
  • (e) to inspect animals the Police reasonably suspect might provide evidence;
  • (f) to remove wall or ceiling linings or floors of a building, or panels of a vehicle;
  • (g) to seize anything that the Police reasonably suspect might provide evidence, including vehicles and computers; and
  • (h) to photograph anything that the Police reasonably suspect might provide evidence.

The Police can seize anything that they reasonably suspect could provide evidence in relation to the commission of any offence. It need not be in relation to the offence or items listed on the Search Warrant.  This means that where the Police find evidence in relation to some other offence they did not previously suspect you of, they can still use this evidence against you even though the Search Warrant was in respect to something else. 

Your Rights and Obligations

Under section 118 of the Police Powers and Responsibilities Act, Queensland, the Police must provide you with a copy of the Search Warrant. You have the right to read the Search Warrant and ensure that it is your name (or another tenant's) and address listed on it. Note that a Search Warrant is only valid for 7 days after it is issued (see section 155 of the Police Powers and Responsibilities Act Queensland). 

It is in your interest not to argue with the Police and it is important that you call a lawyer as soon as possible to obtain legal advice.  You should also cooperate with the Police, otherwise you could be charged with obstructing Police.  However cooperation does not mean you have to assist the Police in their search, but rather do not prevent them from conducting the search. 

You do not have to consent to the search, and there are some instances where you should state that you do not consent.  Namely, if the address on the Search Warrant is not your address or if more than 7 days has passed since the issue date stated on the Search Warrant.

If the address is incorrect or more than 7 days has passed it is important that you clearly state that you do not consent to the search, because otherwise the search may be considered valid despite the invalid Search Warrant, by an implication of your consent.

The fact that you have not provide your consent for the search does NOT prevent the Police from entering your premises and conducting the search, even where you dispute the validity of the Search Warrant.  However where you suspect the Search Warrant was invalid, you may have some argument to prevent the Police from using the evidence against you and this is something you should discuss with your lawyer.

Do I have to Talk to Police

It is not uncommon for Police to question the occupants of a premises (whether they reside there or not) during the course of conducting a Search Warrant.  If the Police attempt to question you during the Search Warrant, they must first caution you on your rights.  It is important to remember that you do NOT have to answer any questions other than providing you name, date of birth and address.  For more information on your rights in relation to talking to Police, Click Here.

Further, if the Police request that you attend the Police station for questioning, you do not have to attend unless you are under arrest.  For more information on Arrest, Click Here.

Can the Police Search my House without a Search Warrant?

The short answer is YES.  Section 160 of the Police Powers and Responsibilities Act Queensland gives the Police have the Power to enter and search a premises without a search warrant if:

  1. They reasonably suspect that there is evidence of a Part 2 Offence that may be concealed or destroyed if a search is not immediately conducted; OR
  2. They reasonably suspect a Part 2 Offence has been, is being or will be committed in respect of a transport vehicle that may endanger the safety of people or the transport people.

Part 2 Offences include:

  1. An indictable offence;
  2. An offence involving gaming or betting;
  3. An offence against any of the following Queensland Acts-
    • (a) Confiscation Act;
    • (b) Explosives Act 1999
    • (c) Nature Conservation Act 1992
    • (d) Weapons Act 1990;
  4. An offence of attempting to take liquor into a restricted area or possession of liquor in a restricted area.

The Police have the same powers as they do under a Search Warrant (as described above) and you have the same rights.  However, the Police must apply to a Magistrate for a post-search approval as soon as practical after conducting the search pursuant to section 161 of the Police Powers and Responsibilities Act, Queensland. 

Can the Police Search Me without a Search Warrant?

The short answer is YES.  Sections 29 and 30 of the Police Powers and Responsibilities Act, Queensland, gives the Police the power to stop, detain and search a person who they reasonably suspect has in their possession: 

  1. a weapon, knife or explosive;
  2. an item prohibited under a Domestic Violence Order;
  3. drugs or tainted property;
  4. stolen property;
  5. evidence in respect of an offence:
    • (a) that has a maximum penalty of 7 years imprisonment or more;
    • (b) under section 469 of the Criminal Code, Queensland (wilful damage);
    • (c) graffiti or sale of spray paint to minors under the Summary Offences Act, Queensland;
  6. an antique firearm where the person is not fit to hold such in their possession;
  7. an implement that can be used for housebreaking or breaking into a vehicle;
  8. an implement that can be used for the administration of drugs; OR
  9. an item that the person intends to use or could be use to harm themselves or another person.

The Police may also stop, detain and search a person who they suspect: 

  1. of cheating or unlawfully using casino equipment, at a Casino;
  2. have committed, are committing or are about to commit an offence:
    • (a) against the Racing Act Queensland;
    • (b) of taking a prohibited thing into a prison or giving a prohibited thing to a prisoner
    • (c) of taking a thing out of a prison;
    • (d) of interviewing or photographing a prisoner; OR
    • (e) that may threaten security or management of a prison.

Upon searching you, the Police may seize any item that they believe may provide evidence of a commission of an offence, any item that could be used to harm yourself or another person and any antique firearm if they believe you are not fit to hold.

Can the Police Search my Car without a Search Warrant?

The short answer is YES.  Sections 31 and 32 of the Police Powers and Responsibilities Act, Queensland, gives the Police the power to stop a vehicle, detain the occupants and search the vehicle where they reasonably suspect that there is any of the following within vehicle:

  1. a weapon, knife or explosive;
  2. an item prohibited under a Domestic Violence Order;
  3. drugs or tainted property;
  4. stolen property;
  5. evidence in respect of an offence:
    • (a) that has a maximum penalty of 7 years imprisonment or more;
    • (b) under section 469 of the Criminal Code, Queensland (wilful damage);
    • (c) graffiti or sale of spray paint to minors under the Summary Offences Act, Queensland;
    • (d) against the Racing Act, Queensland;
    • (e) against the Nature Conservation Act, Queensland;
    • (f) of taking a prohibited thing into a prison or giving a prohibited thing to a prisoner;
    • (g) of taking a thing out of a prison;
    • (h) of interviewing or photographing a prisoner; OR
    • (i) that may threaten security or management of a prison.
  6. an antique firearm where the person is not fit to hold such in their possession;
  7. an implement for housebreaking or breaking into a vehicle;
  8. an implement that can be used for the administration of drugs; OR
  9. an item that the person intends to use or could be use to harm themselves or another person.

The Police also have the power to stop a vehicle, detain the occupants and search the vehicle where they reasonably suspect

  1. the vehicle is being used unlawfully; OR
  2. that a person in the vehicle could be arrest without warrant under section 365, (Click Here to find out more about arrest).

Upon searching you, the Police may seize any item that they believe may provide evidence of a commission of an offence, any item that could be used to harm yourself or another person and any antique firearm if they believe you are not fit to hold.

 

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