There are strict rules that regulate the circumstances in which police are legally permitted to enter and search a person's property without the owner or occupier's informed consent.
In most cases, police will need to obtain an order from a magistrate, judge or other authorised person known as a search warrant before they are permitted to lawfully enter another's property.
Here's a rundown of the rules relating to search warrants in New South Wales.
What is a search warrant?
Search warrants are judicially issued written orders that provide police with the power to enter an individual's premises with the aim of investigating a suspected criminal offence.
There are two pieces of legislation which primarily govern the issuance of search warrants in New South Wales, which are:
- The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘the LEPRA'), specifically Part 5 of that Act and; and
- The Crime Commission Act 2012 (NSW), particularly Division 3.
A warrant may also be issued in relation to a Commonwealth criminal offence, in which case section 3E of the Crimes Act 1914 (Cth) applies.
If issued by a magistrate, judge or other authorised person, a search warrant allows police to enter a premises and conduct a search. Items may be seized in the process of conducting a search. If a valid search warrant exists, it is a criminal offence to obstruct police in their execution of a warrant.
When executing a search warrant, police officers are required to provide an ‘occupiers notice' to an adult on the premises when executing the warrant.
That document details the reasons for the warrant being issued and what is being searched for.
When conducting the ensuing search, an independent police officer must be present to ensure the search is being conducted in keeping with the details and parameters of the warrant.
It should be noted at this point, however, that these notification requirements do not apply to searches conducted under a covert search warrant (see below).
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.
Warrants issued for “searchable offences” in NSW
Under section 47 of the LEPRA, a member of the New South Wales Police Force may apply for a general warrant from an ‘eligible issuing officer' – which includes a magistrate or registrar of the Local Court, or a person authorised to do so by the state's Attorney General.
For a general warrant, the police officer must believe on reasonable grounds there is, or will be within 72 hours, “a thing” connected with a “searchable offence” at the premises outlined in the search warrant.
“Searchable offences” are listed under in section 46A of the LEPRA, and include indictable offences (which are those that can be referred to a higher court such as the District or Supreme Court, rather than finalised in the Local Court), firearms offences, prohibited weapons offences, narcotics offences, child abuse material offences, and offences involving stolen or otherwise unlawfully obtained property.
Where police believe on reasonable grounds that a child prostitution offence has recently been committed, is being committed or will be committed within the next 72 hours, subsection 47(2) of the LEPRA provides that an eligible officer can issue a search warrant.
A general warrant expires 72 hours after being issued.
However, an issuing officer can authorise an extension if they are satisfied the warrant could not be executed within 72 hours.
Police must provide a report about the search to the issuing officer within 10 days of the warrant being executed.
Criminal organisation search warrants in NSW
Certain powers connected to the NSW Crime Commission (‘the NSWCC') allow for specific search warrants in relation to organised crime.
Under section 46D of the LEPRA, an officer holding the rank of superintendent or above may apply for a criminal organisation search warrant. This warrant will be sought when it's suspected that something related to organised crime is on the premises or will be on the premises within 7 days.
Under section 17 of the Crime Commission Act 2012, the NSWCC commissioner or assistant commissioner can apply for a search warrant to find evidence within one month in relation to an organised crime offence, which if not seized could be “concealed, lost, mutilated or destroyed”.
Suspected drug premises search warrants in NSW
Under section 140 of the LEPRA, an officer in charge of a drug investigation may apply for a warrant to search a suspected drug premises if the officer has reasonable grounds to believe it's being used for the supply or manufacture of prohibited substances, or the cultivation of prohibited plants.
Covert search warrants in NSW
Under some circumstances, New South Wales police officers can apply for a ‘covert search warrant' under section 46C of the LEPRA – whereby they are not required to notify the owner or occupier of the premises that there is an intention to search the premises.
A covert search warrant can involve the entering of adjoining premises without notifying the occupiers of these adjacent premises.
An officer can also impersonate someone else whilst executing a covert search, and they can do anything reasonable to conceal the search has taken place.
Section 46C(2) of LEPRA states that a covert search warrant can be issued if an authorised officer:
- suspects on reasonable grounds that there is, or within 10 days will be, in or on the premises a thing of a kind connected with the searchable offence; and
- considers that it is necessary for the entry and search of those premises to be conducted without the knowledge of any occupier of the premises.
Section 46C(1) provides that covert search warrant warrants cannily be issued to police holding the rank of superintendent or above, or the LECC chief commissioner, integrity commissioner or an authorised staff member, as well as the NSWCC commissioner, assistant commissioner or authorised staff.
Covert search warrants must be executed within 10 days of being issued..
Commonwealth search warrants
A search warrant may also be issued in relation to Federal offences by application to a magistrate in the Federal Court.
Section 3E of the Crimes Act 1914 provides that a magistrate may issue a warrant to search premises if satisfied that the applying police officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any “evidential material” at the premises.
Evidential material is defined as “a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form”.
A Commonwealth search warrant must be executed by midnight on the seventh day of issuance. If officers want to be armed at the time, they have to seek magistrate approval.
When can police search a premises without a warrant?
Police officers in New South Wales can conduct a search on a premises without a search warrant in certain limited circumstances.
These include when a person consents to the search of the premises or when police believe on reasonable grounds that:
- a crime is in progress;
- entry into the premises is necessary to arrest an offender that they believe is inside the premise;
- a person on the premises has suffered an injury or is about to suffer an injury;
- it is necessary to prevent a breach of the peace; or
- a person is committing an indictable offence inside the premises
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.