Powers To Search Flashcards
Where does our authority to search a person come from?
- Common Law
- Statute Law
(- specific search power without warrant.
(- warrant to search. - Where there is no other authority to conduct a search, a person can give informed consent.
What categories do people to be searched fall into?`
- Suspects
- Persons arrested
- Persons in or visiting police jails
Is there a common law search power for people who are NOT under arrest?
There is NO Common Law search powers for people who are not arrested.
What certain statutory powers give permission to search a suspect without warrant and without consent?
Certain statutory powers found in various Acts such as:
- Corrections Act 1986
- Court Security Act 1980
- Firearms Act 1996
- Drugs, Poisons and Controlled Substances Act 1981
- Control of Weapons Act 1990
- Graffiti Prevention Act 2007
- Family Violence Protection Act 2008
Almost all of these statutory powers are conditional on the existence of “reasonable grounds” or “reasonable cause to suspect”.
Where does the Common Law power to search come in?
It is the power to search persons arrested and to seize property without consent. So long as the arresting member holds a reasonable belief that the arrested person is in possession of either.
- property that is material evidence in respect to the offence for which the arrest has been made, or any other offences which may have been committed. OR
- objects which might cause injury, damage or
- objects which may assist an escape
What are ‘reasonable belief’ and ‘reasonable suspicion’?
They are objective standards. This means that facts must exist which are sufficient to induce the state of mind in a reasonable person, and must be met in each and every case. You must be able to point to the facts that gave you that suspicion.
What are the factors to consider for a reasonable belief?
- nature of the offence
- demeanour of the person arrested
- circumstances of the arrest and
- prior history of the person in custody
What are the policies surrounding search of a group?
You cannot form a suspicion of a group. You have to apply the test to each individual before you can apply your power to search.
What information will a LEAP check give us on the offender?
- are there warning flags?
- does the person carry weapons?
- are they a drug user?
- are there field contacts where they have been searched before?
- does the person have a prior history of being in possession of weapons?
What are some examples of when Common Law Power to Search Arrested persons is justified? (6)
- Shopsteal (reasonable suspicion gathered from witness that the accused was concealing stolen items on their person).
- Burglarly (You believe the offender has a victims stolen phone on their person)
- Assault (You form a reasonable belief that the accused has the victims DNA on their outer clothing)
- Injure (Upset offender is in possession of a belt before entering the van you perform a pat down search and seize the belt as an item that can potentially be used to self harm/ injure them).
- Injure (Offender appears to have something in their pockets, after questioning you form a reasonable belief that they are in possession of a set of car keys, you perform a pat-down and seize the car keys)
- Injure (While searching for theft you locate a box of pills, under reasonable belief that the pills may be used by the offender to overdose, you seize the pills under your common law power).
What searches can MOPF conduct?
- initial or pat-down search
- full search
What is a pat down search?
This consists of requiring a person to empty their pockets and submit to an external pat down examination.
It may involve the removal and examination of head-gear, shoes and socks, outer clothing such as overcoats and jackets, and handbags. It does not include the removal of inner clothing.
Should be conducted as privately as possible.
What authority does a MOPF need for a pat down search?
There is no formal required for MOPF to conduct a pat down search provided there are legal grounds.
What is a full search?
A full search may require the removal and examination of clothing.
Will not generally involve contact with the subject’s body by the searching members.
It must be conducted in circumstances of complete privacy - preferably at a Police premises.
It does not include intrusive body cavity searching which is covered by other instructions and legislation.
What authority is needed for a full search?
The formal authority of a Divisional Patrol Manager (265) or above, is required before a full search can be conducted, except in the case of an urgent or serious situation.
