Considering when a search warrant is practicable.
Before considering a search you must consider if a search warrant is practicable. If it is practicable you should apply for a search warrant even if the warrantless search power is available to you.
A decision not to apply for a search warrant must be based on RGTB that getting a warrant is not practicable.
When you are thinking about what is practicable consider questions such as:
- is there time to gain approval and apply for a search warrant.
- can the scene be secured (117)
- are reasonable resources (staff etc) available to minimize risk and ensure safety.
- Is the evidential material at risk.
- Location of the search and who may be present.
If not practicable to apply for a search warrant there may be two options available to you.
Warrantless search power: if available then you have the power to search without warrant.
Consent search: If there is no grounds for warrant or warrantless power then you may ask for a consent search. Rules apply to using this.
If you dont have a warrant, warrantless power or consent from the person then you cannot search.
Obligation reason when using a warrantless power.
state the reason for your search and:
- provide a copy of the search warrant and warrantless search notice, and an inventory of anything seized.
- report your use of certain powers.
- consider privilege.
Section 110
Power to search a place, vehicle or thing.
Section 110 authorizes you to:
- Enter and search
- Search any item, or items found in that place.
- use reasonable force.
- Seize
- request assistance.
- bring and use any equipment found.
- bring and use any trained law enforcement dog.
- copy any document
- access a computer system.
- copy intangible material
- take photographs, sound and video.
What if your search is impeded?
- Exclude that person from the place, vehicle or other thing being searched, or any area in or on the place or vehicle.
- Give any reasonable direction to that person.
What is priviledge
Allows the holders of information to refuse to disclose the information. This info is then recognised as privileged.
Recognised privileged material includes material gained through communications with:
- legal advisers
- medical practitioners
- Informants
- Journalists.
There are a set of procedures when a search involves privileged material
- ensure that the person or their representative is present when the search is undertaken.
- Give the person reasonable opportunity to claim privilege.
Additional powers when carrying out a search.
section 116
You can secure a place, vehicle or other thing to be searched and exclude any person from there.
Additional powers when carrying out a search.
section 118
You can detain people when searching places and vehicle for the purposes of determining whether there is a connection between them and the object of the search.
Additional powers when carrying out a search.
section 119
- You can search people found when searching places and vehicles if you have RGTB that evidential material that is the object of the search is on that person or
- if you have RGTS that the person is in possession of a dangerous item that poses a threat to safety and you believe that immediate action is needed to address that threat.
Additional powers when carrying out a search.
section 120
Fresh pursuit and RGTB that the relevant evidential material is still on the person, you have the power to enter any place and apprehend the person and search the person or vehicle.
Section 7 - Entry without warrant to arrest a person unlawfully at large
May enter a place or vehicle without warrant and arrest a person if the constable has RGTS.
- Person unlawfully at large.
- believes the person is there.
Section 8 - Entry without warrant to avoid loss of offender or evidential material
- Suspect a person has committed an offence punishable by imprisonment for which they may be arrested without warrant.
- believe that the person is in a place or vehicle.
- believe that if entry not effected immediately the person will leave or evidential material CADD
