Last updated 25 August 2016
Entry onto private property
At common law, all people, including police, have the tacit consent of the lawful occupier of a property to enter and proceed to the common entry point of a building or residence (i.e. the front door). This consent can be withdrawn by the lawful occupier placing a notice at the gate, installing a locked gate (in which case no person is lawfully entitled to enter the dwelling or land without permission of an occupier) or by requiring any person, including police, to leave the property. Once a person is required to leave or if consent is withdrawn, the person becomes a trespasser and can be removed from the property with force by an occupier, provided the force used is reasonable and does not cause grievous bodily harm (s 277 Criminal Code Act 1899 (Qld)).
If a police officer is refused entry to a property or is asked to leave, the officer must leave unless there is some specific legal right that allows the officer to enter and/or remain. Under the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act), police officers are empowered to enter private property without the consent of the occupier in specific instances including to:
- investigate or inquire into a matter or serve documents (unless a warrant is required by law in the circumstances) (s 19)
- arrest or detain a person where empowered to do so under an Act, and it is reasonably suspected that the person is in the dwelling (s 21)
- search the place pursuant to a search warrant and to the extent permitted by the warrant
- search the place to prevent the loss of evidence
- prevent the occurrence or continuation of injury to a person, damage to property or domestic violence (ss 609–611)
- ensure compliance with other relevant laws (s 22)
- stop excessive noise (s 581).
Police officers are entitled to search a person’s premises by invitation or consent, on production of a search warrant or to prevent loss of evidence. These powers are very broad, so it is unwise to rudely demand that police leave your property. You could face a charge of obstructing police.
If police arrive at a person’s door without invitation, the basis for their presence should be ascertained. If a person does not wish to provide consent for the entry, this should be made clear, and police should not be invited inside the front door. It is important that a person be assertive in such a situation and not be persuaded to allow police inside unless they wish for the search to occur.
If faced with a warrant, a person should attempt to cooperate. However, if consent would not otherwise be given, it should be made clear to police and recorded (e.g. on tape) if possible, that the warrant is the basis for entry and not any consent. Any challenge to the validity of a warrant produced (and therefore the lawfulness of the search) occurs at a later stage before a court. Consent to entry negates the need for a valid warrant.
Police will often carry tape recorders covertly or openly when executing search warrants. That should be borne in mind in any interactions with police. Any answers to questions asked by police can be used as evidence (see Questioning of Suspects by Police).
It is becoming increasingly common for police to seize mobile telephones during searches. A large amount of personal data is contained on mobile phones. If a search warrant has been obtained, the mobile phone is seized pursuant to that search warrant. If the search warrant states that you must provide passcodes and passwords of mobile phones and other devices then you must comply with that request unless you have concerns about the warrant in which case you should seek legal advice. If, however, police make that request and there is no provision in the warrant that requires you to give that information, you should not provide it voluntarily.
If a personal search is undertaken, you should not consent to police taking or having a look at your mobile telephone nor consent to supplying your passcode.
Any items seized should be the subject of a property receipt.
In most situations, police must apply for a search warrant to a justice of the peace (JP) (s 150 PPR Act). Warrants are fairly easily obtained, especially in urban centres where JPs are available even throughout the evening. Where the evidence sought relates to a confiscation or forfeiture proceeding, or where structural damage is likely to occur, the application must be made to a Supreme Court judge (ss 150(3)–150(4) PPR Act). The JP or judge must be satisfied that there are reasonable grounds for suspecting that there either is or will be, within the next 72 hours, evidence of the commission of an offence on the premises to be searched (s 151 PPR Act).
A search warrant issued on the basis of a suspicion that there is such evidence will end seven days after it is issued. A warrant issued on the basis of a suspicion that there will be such evidence within 72 hours ends at the end of the 72 hours (s 155 PPR Act).
If a warrant is sought to be executed at night, it must specify the hours within which the place may be entered (s 156(1)(d) PPR Act).
Police may enter premises to the extent permitted by the warrant and use all powers necessary to execute it, including reasonable force (s 615 PPR Act). Any evidence then found by a police officer during a search may be seized (s 157 PPR Act).
Searching premises without a warrant
If consent is absent, police can only search premises without a warrant if it is reasonably suspected that evidence of an indictable offence (or a limited number of other offences) is at the place, and that the evidence may be concealed or destroyed unless the place is immediately entered and searched (ss 159–160 PPR Act). Police must then obtain post-search approval for that search from a magistrate as soon as reasonably practicable (s 161 PPR Act).
In many prescribed circumstances, police are not required to obtain a warrant in order to stop, detain and search a person. These wide powers and circumstances are provided for in ss 29 and 30 of the PPR Act and apply where a police officer reasonably suspects the person is contravening certain other Acts (e.g. Corrective Services Act 2006 (Qld)) or has in their possession:
- an unlawful weapon or knife
- an unlawful drug
- stolen or tainted property
- evidence of the commission of an offence punishable by at least seven years imprisonment
- something that may be used or is being used as an implement for housebreaking, unlawful use or theft of a vehicle, or the administration of a dangerous drug
- something intended to be used to cause harm (to themselves or others).
In these circumstances, a police officer may conduct a frisk search of the person by running their hands over the outside of the person’s clothes or examine clothes removed with the consent of the person. A search of a person without authorisation by an Act is unlawful and would constitute an assault. However, the powers are very broad and depend upon police having evidence of their reasonable suspicion. It is possible to ask police what the basis of their reasonable suspicion is. Police must have a suspicion that is reasonable, as opposed to a desire to search just in case something illegal is found.
Police have power to stop a vehicle, detain that vehicle and any occupants, as well as search the vehicle without a warrant in the circumstances provided for in ss 31 and 32 of the PPR Act and ss 31 to 35 of the Transport Operations (Road Use Management) Act 1995 (Qld). These circumstances include where the police officer suspects that the vehicle may contain:
- a weapon or explosive that a person may not lawfully possess
- an implement that could be used for housebreaking, stealing a vehicle or administrating a dangerous drug
- tainted property
- evidence that a serious offence has been committed
- something the person intends to use to harm themselves or someone else
- an unlawful dangerous drug.
Warrants may be obtained for searches of vehicles in the same way as for searches of premises, since the definition of ‘place’ in those sections includes a vehicle.
Further powers of search and seizure held by customs officials apply in respect of boats and aircrafts (see pt XII div 1 of the Customs Act 1901 (Cth)). For federal offences, pt IAA div 11 of the Crimes Act 1914 (Cth) provides the basis for federal police search powers. Additional powers for search of persons apply to customs officials in ports and airports (see pt XII div 1 subdiv B of the Customs Act 1901 (Cth)).