Search Warrants

Question 1

Search warrant process overview

Answer 1

The diagram below highlights key steps in the search warrant process.

1 - Gain prior approval
2 - Gain online approval
3 - Gain Issuing Officer authorisation
4 - Plan and brief search warrant execution
5 - Execute search warrant
6 - Report outcomes
7 - File investigation records

Question 2

Is a Search warrant Practicable in the circumstances?

Answer 2

When considering whether applying for a search warrant is practicable, remember that in certain circumstances, with supervisor approval, you can:

• apply for a search warrant orally
• apply for a search warrant without approaching an issuing officer in person (by using the phone)
• secure a scene while you apply for a search warrant for a maximum period of 6 hours (section 117).

These options may help you manage the time required to apply for a warrant where there is a risk of loss of evidential material. They should be considered as exceptions and not used unless other means are not practically available.

Question 3

What do you do before making an online search warrant application?

Answer 3

Before commencing to make an application for a search warrant, you must:

1. Be sure that there are:
   • RGTS that an offence punishable by imprisonment has been, will be, is being, or is about to be committed, and
   • RGTB that the search will find evidential material in respect of the offence in the place, vehicle, other thing or facility.
2. Have checked the target/s history in NIA for other search warrant applications / outcomes.
3. Have assessed the risks associated with executing the search warrant.
4. Have obtained initial approval from a supervisor at or above the rank of sergeant to proceed with the on-line application.

Question 4

Search warrant risk assessment

Answer 4

Any search is inherently risky. These risks must be:

• identified
• assessed
• considered in planning how you execute the search warrant

The risks must be assessed before the application is approved and again before a search warrant is executed.

A Planned Action Risk Assessment and CARD prompt must be completed and TENR applied to assess:

• threat
• exposure
• response (measures to reduce risk)
• necessity

This form can be found in Police Forms under Search and Surveillance.

Question 5

What powers does section 117 authorise?

Answer 5

Section 117 offers a special power when a search warrant application is pending.

If a search warrant application 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 search warrant can be 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 the place or vehicle or securing items in it.

Another situation where this special power could be used is if you arrive at the target address for the search warrant and realise that the address is incorrect, such as a flat or unit number. You could then enter and secure the address until the search warrant has been amended.

Remember that section 117 authorises the securing of the address until a search warrant is obtained. It is not a search power.

The powers conferred by section 117(1) may be exercised until the first of the following occurs:

(a) the expiry of 6 hours from when the power is first exercised:
(b) the warrant is available for execution at that place or vehicle or in respect of that other thing:
(c) the application for a search warrant is refused.

Question 6

Who can issue Search warrants?

Answer 6

Issuing Officers are the only people who may issue a search warrant.

An Issuing Officer may be a:

• District Court Judge
• High Court Judge

Or any person authorised by the Attorney General such as a:

• Justice of the Peace
• Community Magistrate
• Registrar
• Deputy Registrar

Question 7

When will an issuing officer authorise a Search Warrant?

Answer 7

An Issuing Officer may authorise a search warrant for a place, vehicle, thing or facility, if they are satisfied that the search warrant application clearly shows the:

• RGTS an offence punishable by imprisonment has been, will be or is about to be committed, and
• RGTB that the search will find evidential material in respect of the offence in the place, vehicle or other thing.

The Issuing Officer must be personally satisfied that these two conditions have been met before authorising your application.

An Issuing Officer may put restrictions on a search warrant, including:

• restricting 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 search warrant
• requiring a report on the search warrant within a specified time

Question 8

What do you do when an issuing officer refuse an application?

Answer 8

When the Issuing Officer does not sign the search warrant application you should:

• record the Issuing Officers reasons for refusing to sign
• consider the issues raised and if possible re-draft the application, ensuring you have addressed these issues
• re-submit the application to the same Issuing Officer
If the issues cannot be addressed:
• make further enquiries to support (or otherwise) the application
• consider whether to continue your investigation without conducting a search
• if the reasons for not signing the search warrant do not seem justified, submit a report to Legal Services for direction

Question 9

Who may execute a search warrant?

Answer 9

The person to whom it is directed or any constable.

Question 10

How long is a search warrant valid?

Answer 10

No more than 14 days from the date of issue, as specified by the Issuing Officer, or
No more than 30 days from the date of issue, as specified by the Issuing Officer, if you have justified why this is necessary and the Issuing Officer is satisfied.

Question 11

When can a search warrant be executed?

Answer 11

• at any time that is reasonable under the circumstances, or

* at a restricted time required by the Issuing Officer as a condition of execution.

Question 12

When is a search warrant considered executed?
When you (or anyone assisting you):

Answer 12

• have seized the evidential material specified in the search warrant, or
• leave the place, vehicle or other thing to be searched and do not return within 4 hours.

Question 13

How often can a search warrant be executed?

Answer 13

• once, unless
• more than one execution is applied for, justified and authorised in the search warrant. You must detail the reason for the multiple entries.

Question 14

What does section 134 allow you to do?

Answer 14

If providing a copy of the search warrant or inventory would:

• endanger the safety of any person, or
• prejudice on-going investigations

you may apply to a judge to postpone your obligation to provide a copy of the search warrant. An application to postpone is made under section 134 of the Act and should be presented to the judge:

• at the time of the search warrant application, or
• before 7 days has passed after the search warrant execution

Question 15

When can you use reasonable force?

Answer 15

• enter the place, vehicle or other thing (section 131)
• search (on property only) and seize (section 110)
• carry out a search of a person (section 125)

Question 16

Search warrant briefings should cover?

Answer 16

Ground

• location to be searched
• address
• neighbours

Situation

• reason for seeking the search warrant
• background on any suspect(s)

Mission

• address
• suspect(s)
• specific evidential material sought

Execution

• timings
• method of entry
• roles – O/C Scene, O/C Exhibits etc
• responsibilities
• obligations on entry
• managing suspects
• searching for evidential material
• recording evidential material
• assisting vulnerable people
• sequence of events
• managing risks and ensuring safety

Administration

• travel to and from the place to be searched under warrant
• timing of the search warrant execution
• recording of evidential material seized

Communication

• cell-phone numbers and radio channels
• before executing the search warrant
• during execution of the search warrant
• debrief

Question 17

What should the person in charge of the search warrant briefing do?

Answer 17

The person in charge of the search warrant briefing 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
• identify and advise staff of what they can record in their notebooks during the briefing as all entries may be disclosable

Question 18

What are the rules and obligations when executing a search warrant?

Answer 18

Rules and obligations

• identification and notice requirements when searching places, vehicles and other things (section 131)
• the rules for searching people (section 125)
• powers incidental to search (section 110)
• reporting (section 169)

Question 19

What additional powers do you have at a search warrant?

Answer 19

Additional powers

• securing a place, vehicle or other thing to be searched and excluding any person from there (section 116)
• powers of detention incidental to search of places or vehicles (section 118)
• powers of search by a person who has a power of arrest (section 119)
• stopping vehicles for search (section 121)
• moving vehicles for search / safekeeping (section 122)
• seizure of items in plain view (section 123)
• items of uncertain status may be seized (section 112)

Question 20

What must you do before you make entry at a Search warrant?

Answer 20

Before or when you enter a place or vehicle to execute a search warrant you must:

• identify yourself by name or unique identifier (eg: 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 search you must advise them of the caution (Bill of Rights).

Question 21

Why might you delay your Section 131 obligations?

Answer 21

If you are concerned that once the occupants of the place to be searched see the list of evidential material sought attached to your search warrant they will alert others to your investigation you may delay complying with the section 131 announcement obligations at the time of entry.

If you have RGTB that no one is at the address to be searched you do not have to comply with the section 131 announcement obligations on entry. You must leave a copy of the search warrant and an inventory of any items seized. If not reasonably practicable, then this action must be completed within 7 days of the search warrant being executed.

Question 22

Differences when executing a Search Warrant for drugs?

Answer 22

When you are executing a search warrant for drugs (where the offence specified in the application was an offence against the Misuse of Drugs Act 1975) you may search any person found in the place or vehicle you are searching (section 19).

Remember to comply with the obligations and rules set out in section 125.
1. identify yourself by name or unique number
2. advise the person of the enactment under which the search is taking place and the reason for the search, unless it is impracticable to do so
3. produce evidence of identity if not in uniform
When you exercise 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 any item that the person is wearing, carrying or is in the person’s physical possession or immediate control
• seize anything carried by or in their physical possession or immediate control if the thing is the subject of the search or may be lawfully seized.

Question 23

What powers does Section 121 give you?

Answer 23

Section 121 provides the power to stop a vehicle if you intend to search it.

You may use section 121 to stop a vehicle if you have authority to search the vehicle by:

• executing a search warrant or
• using a warrantless power

Question 24

What does section 127 allow you to do?

Answer 24

Section 127 allows you to enter any place:

• to locate the vehicle to execute the search warrant if
• you have RGTB that the vehicle is there.

You are not required to specify a place for the vehicle to be located in the search warrant application. Your search warrant target is the vehicle.

However, you must comply with the section 131 obligations when entering the place.

Question 25

What powers can you use if you find other non listed exhibits at a search warrant address?

Answer 25

The Search and Surveillance Act provides powers for dealing with other items that you may find in the lawful search of a person, place or vehicle or if you are lawfully in any place or vehicle:

• removal of items of uncertain status in certain circumstances (section 112)
• seizure of items in plain view (section 123)

Question 26

What powers does section 112 give you?

Answer 26

Items of uncertain status (section 112)
If you are carrying out a lawful search and it is not reasonably practicable to determine whether any item can be lawfully seized you may:

• remove items for examination or analysis off-site to determine if you can seize them lawfully

Any item you want to remove must be within the scope of the original search.

Question 27

What powers does Section 123 give you?

Answer 27

Items in plain view (section 123)
You may seize any item you find in plain view when you are searching or that you observe if:

• You have RGTB that you could have seized the item under a search warrant or other search power.