If police wish to search you, you are entitled to ask why and police must tell you. If they do not have the legal right to search you, you can refuse – they cannot force you.
If you agree to be searched, they should get your agreement in writing. You can make a complaint if this does not happen.
The officer who performs the search must be of the same sex as you (unless this is not reasonably possible). They must make a written record of the search and give you a receipt for anything they take. You can ask for a copy of the search record at any time.
Police have a legal right to search you or your property only if:
- you agree to the search
- they have a warrant
- they have reason to believe that you have a concealed weapon
- you have been arrested
- you are in a declared ‘designated area’
- there is some other reason specified in the law.
In certain circumstances, police don’t need a warrant to search you, anything you are carrying, or the car you are in. They can search your car even if you are no longer in it. Police can only conduct personal searches in Victoria if you are in a public place and they reasonably suspect:
- you have illegal drugs
- you have dangerous items in your possession, such as guns (including imitation guns), knives, knuckle-dusters, nunchakus, other weapons, things that may explode or catch fire
- you are in an area where a lot of violent crime happens
- you have tools for graffiti like spray paint, textas, or gouging tools. Police can only search you for graffiti tools if you are aged 14 or older and are on or near public transport property or trespassing on someone else’s property.
- you are in a designated place. An area can be declared ‘designated’ if there have been two or more events of violence or disorder there in the last year, it is a regular trouble spot, or there have been events or demonstrations that have become violent. The police are usually required to publish the declaration of an area as designated in a local newspaper. If it has occurred at short notice, though, there is no requirement for them to do so.
Before searching you in a designated area, the police officer must give you a search notice. This will state that:
- the area is a designated area
- you or your motor vehicle are in the designated area
- the police have the power to search you
- it is an offence to hinder or prevent the police searching you.
In most cases, a police officer will need a warrant to come onto private property and conduct a search of the property or any people on the property. The officer may conduct property and personal searches in Victoria without a warrant when:
- you let them in
- they need to stop a ‘breach of the peace’, such as a fight
- they believe that someone will or has committed a serious offence and they need to enter to arrest that person
- someone on the property has breached an intervention order or a family violence safety notice
- someone has defied a police direction relating to family violence matters
- they believe someone has assaulted or threatened to assault a family member
- they are pursuing a person who has escaped from prison or custody
- they have a warrant to arrest someone on the property.
There are a number of options for police when conducting personal searches in Victoria.
Pat-down search: for this search, the police officer will run their hands or ‘pat’ over the outside of your clothes. They can:
- search you in public or on private property
- have you empty your pockets or remove your jacket or jumper
- ask you to produce anything that might amount to a weapon
- use a metal detector to search you for a weapon.
Full search: this is when the police remove and search all of your clothing. These searches must be conducted privately so they are usually undertaken in a windowless room at a police station. When police conduct full personal searches in Victoria, they must ensure you have someone with you (unless it is urgent or serious circumstances make it impractical) if you:
- are under 18
- have a cognitive disability or a mental illness.
In these cases, your parent or guardian or another independent person must be with you while the search is carried out.
Internal body search: this kind of search is invasive and is considered a forensic procedure. It must be carried out by a doctor who is of the same sex. You do not have to agree to this kind of search. If you refuse, the police must get an order from the court.
This article reflects the state of the law as at 1 February 2016. It is intended to be of a general nature only and does not constitute legal advice. If you require legal assistance, please telephone 1300 636 846 or request a consultation at gotocourt.com.au.