Updated: Aug 22
An overview of the law.
The police in our criminal justice system are vested with a variety of powers including:
- power to detain;
- power to seize property;
- power to search property.
In this brief article we look at the power to search and seize property. Depending upon the circumstances, a power to search (and seize property) may be exercised with or without a warrant.
Power to search is controlled by legislation.
There is no common law right for police to search a person or a place on a mere suspicion that such a search would uncover evidence tending to prove a person's involvement in a criminal offence.
Our criminal justice system protects the arbitrary invasion of privacy (person and property) by placing limits upon the circumstances that the police may conduct a search.
The common requirement that must be met for all searches (whether with or without a warrant) is that there is reasonable grounds or reasonable cause for believing that an item/thing will be on a person, or in or at particular place (such as a private residence).
Examples of searches that require a warrant
Warrant to search premises
Drugs, Poisons and Controlled Substances Act 1981 (drug offences)
Under section 81 of the DPCSA 1981 (Vic), the police may apply to the Court for a warrant permitting them to search any premises or land (including any vehicle in or no that land or premises), "if there is reasonable grounds for believing that there is, or will be within the next 72 hours, or on or in any land or premises (including any vehicle on or in that land or those premises), or on or in a particular vehicle located in a public place:
(a) any thing in respect of which an offence under this Act or the regulations has been or is reasonably suspected to have been committed or is being or is likely to be committing within the next 72 hours;
(b) any thing which there is reasonable grounds to believe will afford evidence of the commission of an offence under this Act or the regulations;
(c) any document directly or indirectly relating to or concerning a transaction or dealing which is or would be, if carried out, an offence under this Act or the regulations or under a provision of a law in force in a place outside Victoria..."
A warrant if granted by the Court (usually by the police giving evidence on oath or by affidavit), the warrant permits the police to enter and search the land or premises, and seize property alleged to be evidence in support of an offence under the DPCSA 1981 (Vic).
Crimes Act 1958 (stolen goods)
Where police have reasonable cause to believe that a search of premises will uncover stolen property an application for a warrant may be made to the Court (Section 92 of the Crimes Act 1958 (Vic).
Section 92 provides that the Court must be satisfied on either oath or affidavit that there is a reasonable cause to believe that "any person has -
(b) on any premises (including any vehicle on or in those premises) of the person; or
any stolen goods...
A warrant issued by the Court permits the police to search and seize any property alleged to have been stolen.
Firearms Act 1996
A police officer who believes on reasonable grounds that an offence has or is about to be committed under the Firearms Act may apply to the Court for a search warrant, and pursuant to the warrant being granted, may search, and seize any thing as evidence (relevant to the offence, for example unregistered firearm, or ammunition)
Warrant to search motor vehicle
Crimes Act 1958 (Vic) (stolen goods)
As per the requirements under s. 92 regarding searching for suspected stolen goods.
Drugs, Poisons & Controlled Substances Act 1981 (drug offences)
A warrant issued under Section 81 includes a power to search a car on premises or land that is the subject of the warrant. For searches of motor vehicles not on private land see below.
Examples of searches that do not require a warrant
Search of person and or car
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
The precondition for a search without warrant is the same as for Section 81 described above. That is, the police must have reasonable grounds for suspecting that:
"(a)...on or in a vehicle or upon a public place
(c) in the possession of a person in a public place"
There is a drug of dependence in respect of which an offence has been committed or is reasonably suspected to have been committed...
Control of Weapons Act 1990
Under section 10 of the Control of Weapons Act, the police may search a person or car, if they police officer has "reasonable grounds for suspecting that a person is carrying or has in his or her possession in a public place a weapon contrary to the Act.
Road Safety Act 1986
Section 84F of the Act provides that the police may search for or gain access to a motor vehicle, if a police officer believes on reasonable grounds that a motor vehicle has been used in the commission of a relevant offence. A power exercised pursuant to Section 84F includes a power to seize and impound or immobilise the motor vehicle.
Enter and search as an extension of arrest power
Section 459A of the Crimes Act 1958 (Vic) permits the police to enter and search a premise where a police officer believes on reasonable grounds that a person is residing, and that the person is believed on reasonable grounds to have:
(a) committed in Victoria a serious indictable offence;
(b) committed an offence elsewhere which if committed in Victoria would be a serious indictable offence;
(c) to be escaping from legal custody.
The requirement of reasonableness
As will be noted above the precondition to be satisfied in all searches is one of reasonableness. The leading case on the interpretation of 'reasonable grounds' is George v Rockett (1990) 170 CLR 104. The High Court observed in that case that:
"When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion or belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
It follows that the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind.
The Court went on to discuss that a suspicion and belief are not one and the same:
"The facts which ca reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown"
In Queensland Bacon Pty Ltd v Rees  HCA 21, the Court observed:
"A suspicion that something exists is more than a mere idle wondering whether it exists or note; it is a positive feeling of actual apprehension or mistrust, amount to 'a slight opinion, but without sufficient evidence'. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
An experienced criminal lawyer will be alert to the law that governs searches in a variety of settings. In considering whether a search which yielded relevant and otherwise admissible evidence may have overstepped the mark a thorough analysis of the brief of evidence and the surrounding circumstances of the offence will need to be undertaken. This particularly important for searches conducted without warrant (person or cars). For such searches, statements from investigating officers, and diary notes may be a fertile source for challenging the validity of whether reasonable grounds were actually established prior to the search occurring.