Search Warrants Flashcards
Purpose of SW
A valid search warrant provides legal authority to enter any place, vehicle or other thing to search for and seize specified evidential material
SW Process
- gain prior approval
- gain online approval
- gain issuing officer authorisation
- plan and brief SW execution
- execute search warrant
- report outcomes
- file investigation records
Order of Hierarchy
- SW
- Oral SW
- Warrantless Search
- Consent Search
- Practicability
- apply for SW orally
- apply for SW without approaching an issuing officer in person (phone or email)
- secure scene while you apply for a search warrant for a maximum period of 6 hours (section 117)
If oral approval is sought, you must make an online application ASAP and back capture the required information.
Before making an online application
- Be sure that there are:
- RGTS an offence punishable by imprisonment will be, is being, or is about to be committed.
- RGTB search will find evidential material in respect of the place, vehicle or other thing - Have checked the target history in NIA for other search warrant applications/outcomes
- Have assessed the risks associated with executing the search warrant.
- Have obtained initial approval from a supervisor or above the rank of sergeant to proceed.
SW Risk Assessment
- Identify
- Assess
- Consider in planning how you execute the SW
TENR - Threat, exposure, necessity, response.
Your key consideration is the safety of Police and any nearby people.
- Special Power - Section 117
If a search warrant is about to be made, or has been made and you are waiting to hear if it has been authorised, and you have RGTB that evidential material may be CADD or removed before the SW is issued. You may:
- enter and secure a place, vehicle or other thing AND
- secure any item found there AND
- direct any person to assist with entry and securing
Holding power NOT a search power.
117 can be used until one of the following happen:
- the expiry of 6 hours from when the power was invoked
- the warrant is available for execution at that place or vehicle
- the application for a SW is refused.
- Who Can Authorise SW
An Issuing Officer: District Court Judge & High Court Judge
Or any other person authorised by the Attorney General such as a: Justice of the Peace, Community Magistrate, Registrar, Deputy Registrar
- When will a SW be authorised?
An application clearly shows:
- RGTS an offence punishable by imprisonment has been, will be or is about to be committed
- RGTB that the search will find evidential material in respect of the offence in the place, vehicle or other thing
An issuing officer may put restrictions on a search warrant including:
- the time when the search warrant can reasonably be executed
- requiring the occupier or person in charge of a place to provide reasonable assistance to the officer executing the SW
- requiring a report on the SW within a specified timeframe
- Refusal of a SW
- record the issuing officers reasons
- consider the issues raised and if possible re-draft the application, ensuring you have addressed these issues
- resubmit the application to the same issuing officer
If the issues cannot be addressed: make further enquiries to support the application, consider whether to continue your investigation without a search, if the reason does not seem justified, submit a report to legal.
- Executing a SW
Who: The person who is directed to or any constable
How long: no more than 14 days from date of issue. If you justify why its necessary and IO is satisfied, then 30 days.
When to execute: any reasonable time, a restricted time required by IO.
When considered executed: once evidential material is seized or leave the place, vehicle or thing to be searched and do not return within 4 hours
How often: Once, unless more than once is applied for, justified and authorised in SW.
- Risk Management
On-going and in preparing a SW execution plan you must:
- review and reassess the identified risks
- work with others and consider further risks
- plan how to manage and minimise any identified risks
- determine how risk management will be communicated in the briefing
- Application to Postpone Notice Obligations
Following a SW you are obliged to provide a copy of the search warrant and an inventory of any items that are seized to the occupier (section 131).
You may apply to a judge to postpone your obligation to provide a copy of the SW if providing a copy of the SW or inventory would: endanger the safety of any person or prejudice on-going investigations.
Application to postpone is made under section 134 of the Act and should be presented to the Judge at the time of the application or before 7 days after the search warrant execution.
A Judge can postpone these obligations for a period of not exceeding 12 months.
Safety & Use of Force
When executing a search warrant you may be be required to use reasonable force to:
- enter the place, vehicle or other thing (s131)
- search (on property only) and seize (s110)
- Carry out a search of a person (s125)
GSMEAC
Ground - address, neighbours
Situation - reason for search, background of suspects
Mission - suspects, evidence sought
Execution - time, method of entry, roles, sequence of events, managing risk
Administration & Logistics - travel to and from, recording of evidential material
Communication - radio channels, phone numbers, debrief
- Holding a SW Briefing
Person In Charge should:
- ensure all required staff are present
- reinforce verbal information given with visual prompts
- use maps, charts, diagrams, photographs
- provide copies of all important documents
- ensure all staff present are clear about their roles and responsibilities
The briefer should also identify any issues relating to sensitive or source CHIS related info
Obligations
Before or when you enter a place or vehicle to execute a search warrant you must:
- identify yourself by name or QID
- provide evidence of identity if not in uniform
- state the name of the Act and reason for your search
- Announce your intention to enter and search
- provide a copy of the search warrant
Where occupants are detained for the purpose of a search you must advise them of the caution (Bill of Rights)
No One is Home
RGTB no one is at the address to be searched, you do not need to comply with s131 announcement obligations on entry.
Must leave a copy of the SW and an inventory of any items seized. If not reasonably practicable, this action must be completed within 7 days of the execution.
Executing a SW for Drugs
You may search any person found in a place or vehicle you are searching (s19)
Remember to:
1. identify yourself by name or QID
2. advise the person of the enactment under which the search is taking place and the reason for the search, unless it is impractical
3. Produce evidence of identity if not in uniform
Stopping Vehicles to Search For Drugs
Section 121 - provides power to stop a vehicle if you intend to search it with the authority of a SW or warrantless power.
Executing a SW for a Vehicle
Section 127 - allows you to enter any place, to locate a vehicle to execute a search warrant if you have RGTB that the vehicle is there.
You are not required to specific a place, the target is the vehicle. But you must comply with s131 obligations.
Items of Uncertain Status - Section 112
Seize & remove items for examination or analysis off-site to determine if you can seize them lawfully. Must be within the scope of the original search.
Items in Plain View - Section 123
Seize any item found in plain view when you are searching that you observe if you have RGTB that you could have seized that item under a search warrant or other search power.
- Exercising a Power to Search a person
You may:
- detain the person to enable the search to be carried out (for as long as is reasonably necessary)
- use force that is reasonable for the purposes of the search
- search for any item that the person is wearing, carrying or is in the persons physical possession or immediate control
- seize anything carried out by or in their physical possession or immediate control if the thing is the subject of the search or may be lawfully seized
