Picture the scene – police burst into an individual's house, breaking down the door and ransacking their personal possessions. A slick detective flashes a badge and some paper at the home owner and, like magic, they have unlimited access to search through every personal possession.
While this may look good in the movies, in real life police searches are a more complex legal matter. Protecting your rights when it comes to a police officer entering your home to search for evidence is a vital part of a criminal lawyer's role. With that in mind, here's a guide for Queenslanders on their rights if law enforcement officers want to search their home.
When might the police want to search your home?
Searching your home is a legal measure only taken if the police department suspects that your property may contain evidence linked with a crime. This could mean:
- Your property contains evidence linked with a crime, such as clothing or a weapon.
- The house was the site of a criminal action, such as sexual violence or domestic assault.
- Personal devices, such as mobile phones or computers, containing information on a crime are stored on the property.
This search can extend to other personal areas, including your car or shed. However, a variety of circumstances affect your rights to refuse a police search of your personal possessions and property and dictate the steps to be taken if a police offer presents a warrant.
What are my rights if a police officer searches my home?
This can be broken down into two categories – if the officer in question has a valid search warrant or not.
If the police officer does not have a search warrant
The Queensland Government specifies that the police don't have an automatic right to search your home. Consent to enter your property doesn't just begin at your front door, either. If you have a locked gate or a sign limiting access to your property, then a police officer is in breach of your rights if they cross this threshold without your consent.
If you find a member of the police department on your property without permission, you have the right to refuse entry. Clearly state to the officer that you're not going to invite them in and that you would like them to leave. Having a witness who can testify to you not giving consent to access your property is useful should the issue go to court.
There are, however, certain circumstances in which a police officer can enter your property without consent. These situations include if:
- An officer intends to formally hand over a legal document such as a warrant for arrest or court subpoena.
- A person has been harmed or is in immediate danger of being harmed.
- Someone who has escaped from incarceration or is fleeing arrest is on or passes through your property.
- The police need to access a crime scene.
- A suspected political terrorist needs to be confined under a preventative detention order.
Under these circumstances, you have no recourse to refuse the police entry. You still, however, retain certain rights in what a police officer can do once they enter the property.
If the police officer does have a valid search warrant
If an officer presents a search warrant, it's vital that you check this warrant is legally valid for entry to your property. You have the right to keep a copy of this document, so check through it (with legal help) to make sure the details are correct. It's important to note that police should have a separate search warrant for each part of your property. For example, your car is considered a different part of your property and therefore requires a different warrant.
The search warrant should state the powers endowed to police officers to conduct the search. This can include:
- Detaining anyone onsite so they can help fulfil the orders of the search warrant.
- Seizing evidence, or taking photos of these items for later use.
- Searching individuals on the premises.
- Opening or accessing restricted areas such as safes or locked cabinets.
- Performing minor alterations to the building's structure, such as removing floor, wall or ceiling panels, or digging up the garden or lawn.
When a police officer is performing a search of your home, you have the right to be treated with respect, and any search of your person needs to be dignified and conducted in privacy. You have the right to refuse an immediate personal search if no same-sex officer is available too, unless it's an emergency.
If police seize your personal possessions as evidence, you should get a receipt to ensure the items are kept safe. Police officers should not hold these possessions for more than 30 days, unless you are served with a court notice, and they should be returned undamaged.
Protecting your legal rights
In 2015, the Supreme Court upheld an application to exclude a mobile phone discovered in a police search as evidence in a criminal law trial. The phone was seized through an unlawful search of the plaintiff's property, and represented a breach of their privacy. Queenslanders, with access to the right legal support, can rest easier knowing their rights can be protected from improper police conduct.
If you have been the victim of an illegal police search, you have the right to justice. Contact Russo Lawyers – we are criminal law experts with decades of experience in the Brisbane legal scene, and can help you fight for a favourable outcome.