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3.2 – Police Powers – Searching Suspects and property

http://www.legalaid.vic.gov.au/find-legal-answers/police-powers-and-your-rights/getting-searched

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Search Powers Police authority to search a person is derived from two sources

Statute

Common law

Statute Drugs poisons and controlled substances Act (s.82)

Firearms Act (s.149)

Control of weapons act (s.10(1))

Court security act (S.3(3))

Search warrant

Common Law There is no common law power to search a person NOT arrested. The member must

reasonably believe that the person is in possession of;

Property that is material evidence or other offences which may have been committed

Objects which may cause injury, damage or be used to effect an escape.

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Police Procedures - Searches

Searches

Under the Crimes Act 1958 (Vic.), a police officer may obtain a warrant to searchpremises if it is believed on reasonable grounds that the search will disclose:

• stolen goods,

• goods that might be evidence of a crime,

• goods that might be used in a crime,

• goods that might be relevant to the commission of a crime.

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Police Procedures - Searches

Searches

Under the Crimes Act 1958 (Vic.), a police officer may enter andsearch premises without a warrant where the police have a reasonable belief

that:

• an indictable (serious) offence is happening,

• a person is escaping from legal custody,

• a person with a mental impairment is likely to do harm to themselves or others,

• illegal drugs are on the property,

• there has been a breach of an intervention order.

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Body searches http://

www.smh.com.au/national/victoria-police-get-extra-search-powers-20091216-kwnh.html

If a person is arrested, the police may undertake a body search in order to find a weapon that may be concealed.

Police firearm incident Police Watch house

Undertaking a search also may take place in order to preserve evidence that might be used to prove an alleged offence.

A search may take the form of a ‘frisk’ or ‘pat-down’ search where the person is not required to remove any inner clothing such as pants or singlet.

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Counter Terrorism laws

The Terrorism (Community Protection) Act 2003 (Vic.)

The Act gives the police search powers for limited periods or for specific occasions such as sporting events in order to protect the public from a terrorist act. (Authorised by Premier)

http://www.news.com.au/national/tony-abbott-announces-australian-terror-threat-raised-from-medium-to-high/story-fncynjr2-1227056606585

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Searching for Private Property Victorian police may enter private

property without a search warrant

for the purposes of making an arrest (serious indictable offence in Victoria)

if they believe that an offence was committed elsewhere but is a serious indictable offence under Victorian law

A person who has escaped legal custody

Person is in the process of committing a serious indictable offence such as armed robbery, rape or murder.

Specific acts of parliament such as;

Family Violence Protection Act

Some Commonwealth Offences

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Searching Private Property

Terrorism

Commonwealth and state legislation in this area but, in Victoria, police are able to search a person's home without his or her knowledge, if there is a reasonable suspicion that a terrorist act has been, or might be, committed.

A warrant from the Supreme Court must be sought before a search is undertaken and police are required to report back to the court within seven days.

https://www.youtube.com/watch?v=NzyzJV5S_xU&feature=youtu.be

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Searching for stolen goodsCrimes Act (Vic)

http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s92.html

If based on evidence that there is a reasonable belief that a person is in possession of stolen goods, a warrant to search and seize those goods may be issued by a magistrate.

A member of the police of the rank of inspector may, however, provide a constable with written authority to search premises for stolen goods in certain circumstances;

for example, if the occupant of the premises, where it is suspected that stolen goods are located, has been convicted of handling stolen goods within the past five years.

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