Search Warrants (Vic)

A search warrant is a written authority from a court that gives the police the power to enter and search premises. If the police want to search a house or vehicle in a situation where a search warrant is required, they must apply to the court for a warrant. If a warrant is granted it will authorise the police to do certain things within a stated period. This page deals with search warrants in Victoria.

Searches without warrants

In Victoria, police can generally only enter and search premises without a warrant if they have the consent of the occupier. However, police can also search premises without a warrant if they believe on reasonable grounds:

• that a serious offence will be or has been committed
• that illicit drugs are on the premises
• that a fight is in progress or that an intervention order has been breached.

Legislation

In Victoria, both state and commonwealth laws apply to the issue of search warrants. Applications for search warrants must be made in writing, and they must be sworn or affirmed to be true and correct.

Search warrants can be issued under a range of legislative provisions including section 267 of the Police Act 2013, section 465 of the Crimes Act 1958, section 75 of the Magistrates Court Act 1989, section 81 of the Drugs Poisons and Controlled Substances Act 1981 and section 3E of the Crimes Act (Commonwealth) 1914.

Application for a search warrant

An application for a search warrant must set out the general nature of the suspected offences that the warrant relates to. It must also state the reasons that the police believe they will find evidence of those offences on the premises or in the vehicle.

A senior police officer must satisfy a magistrate that they have reasonable grounds to believe that there is (or will be within the next 72 hours), in the building or vehicle:

• something connected with an indictable offence that has been committed or that might be committed in the next three days
  tainted or forfeited property, or
• evidence of an offence.

If a search warrant is issued, then the court’s reasons for granting it must be recorded. A warrant can be valid for a period for up to seven days. This period may be extended by the court.  

What does a search warrant authorise?

When a court issues a search warrant, it will authorise the police to take the actions that it considers necessary in the circumstances. For example, in cases where the search is urgent, police may be authorised to use force to gain access to premises, while in others this would not be permitted.

Actions that may be authorised under a warrant include:

• to enter premises, or part of premises
• to search for, and seize, anything listed in the warrant
• to use force to gain entry to premises
• to search persons who are present at the premises or in the vehicle
• to search computers and mobile devices and directing persons present to provide information and assistance needed to do so (for example, providing passcodes and copying data into an accessible and intelligible form).

Executing a search warrant

In general, when the police have been issued with a search warrant, they must advise the occupants of the existence of the warrant and the fact that they are at the premises to conduct a search. The occupier will generally be permitted to remain present and supervise while the search is conducted.

In some situations, a search may be conducted without advising the occupier. This may occur where the police believe that announcing the search may cause a risk to the safety of a person or to the evidence being searched for.

Where a covert search warrant is issued, police may conduct the search without advising anyone and may conceal evidence that the search has been conducted.  This is likely to occur where an investigation is being conducted in secret, such as where police suspect a terrorist offence is being planned.

If an occupant is advised that a search is to be conducted under a warrant and entry is refused, then police may use reasonable force to enter the premises. It is a criminal offence to obstruct the police when they are executing a search warrant. However, if the premises are not the ones named on the warrant or the time or date on the warrant has passed, entry can be refused.

The police are allowed to videotape a search. At the end of the search, the police officer who executed the search warrant must give the occupier a document listing any items that they have taken.

A warrant cannot be executed at night unless this has been specifically authorised.

Notice to occupier

When police execute a warrant, they must give a copy of the warrant to the person who is at the premises, and who is in charge of the vehicle. A copy must also be given to any person who is searched under the warrant.

Items seized

The police must report back to the magistrate who issued the warrant and advise them of any items seized during the search. The magistrate will determine what happen to the items. Orders that the court may make include that items are to be kept for evidence, returned to their owners, or destroyed.

Failure to follow correct procedures

If the correct procedures are not followed when a warrant is issued, or when a warrant is executed, the search may be found to have been unlawful. If this occurs, it is likely that any evidence collected during the search will be found to be inadmissible in criminal proceedings. The persons whose premises or vehicle was searched may also be able to take action against the police for the unlawful search.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.