Police are at my house. What are my rights?
There are three ways police are permitted to gain entry to your property – with your consent, with a warrant or with an existing right under statute or common law.
If the police are at your door without a warrant and you do not want them to enter your property, you should make that clear at the outset. If it turns out the police have entered under a different power then this is something that can be challenged at a later date.
It is important to know that although you may initially consent to police entering your property, that consent can also be revoked. If nothing illegal has been found at the point consent is revoked, the police must leave, after being given a reasonable amount of time to do so.
The police are permitted to come as far as the front door without invitation, like anybody else, but once it is made clear that they are not welcome then they must retreat to the outer boundaries of your property.
Police have a number of powers under statute to search a private citizen’s property. Under section 64 of the Magistrates’ Court Act a warrant to arrest carries with it the power to search any property where the person named in the warrant is suspected to be in hiding.
Under section 459A of the Crimes Act, police have the power to enter a property in order to search for a person they suspect has committed a serious indictable crime. This power only allows them to search for the suspect, not to seize property. However, the discovery of illegal property in accordance with a lawful entry may be authorised under other powers under statute or common law.
The Family Violence Protection Act permits entry without warrant to a person’s property where it is suspected that family violence has occurred. The Road Safety Act also now permits police to search a vehicle in absence of a warrant in certain circumstances associated with hoon offences. These are just some examples where statute permits entry to property in absence of a warrant.
A search warrant is a Court issued document that authorises the holder to search a nominated property or thing. A warrant can only be issued by a Magistrate or a Judge. This is to protect citizens from police abusing the powers associated with the issuing of warrants.
However, section 92 of the Crimes Act does allow high ranking police officers to authorise property searches, with certain limitations. As this is not issued by a Magistrate it is not technically a warrant, but it does blur the lines somewhat.
A warrant to search a particular premises must specifically name the property. An error in the address will make a search of the property invalid. The warrant must also state the place or thing to be searched and what general offence has justified the search.
Police have fairly broad powers in relation to searching property, but they are not unlimited. Whether the police have acted lawfully is something that can be looked at in consultation with your lawyer.
If you have had your property searched by police and would like further advice, call one of our offices today and make an appointment for a consultation.