Search and Seizure with a Warrant
Warrants are largely governed by the Search Warrants Act 1997, however the carrying out of search warrants issued under this Act is regulated under numerous other Acts, including the Poisons Act.
The Commissioner of Police may issue a general warrant valid for six months to search for stolen goods (Police Offences Act, s60). This includes on the person and in premises and conveyances.
A police officer may search a named place, and seize things under a warrant issued by a justice (Crimes Act (Cth) s.3E). The search and seizure has to be for an offence against a law of the Commonwealth or a law of a Territory. This is because federal and state legislation are generally separate, and federal warrants will only cover federal crimes, while state warrants will only cover state crimes.
Search After Arrest
Police procedure in Tasmania is that a police officer can search a person if they believe on reasonable grounds that it is necessary. It is also authorised under s58B of the Police Offences Act. There are general powers to search on arrest if the nature of the offence – such as a violent offence, requires it. Other offences would include possession of drugs, or if the offender appeared mentally unstable. See Arrest.
Where a search or seizure is lawful, so is the use of reasonable force. For example, if entry is barred, police are entitled to force or, if necessary, break the lock of a door.
Valid search warrant
When a search warrant is issued, requirements for its issue must be complied with. The justice must be satisfied that there are good reasons for issuing the warrant. The warrant must specify what premises are to be searched, the sort of items to be searched for (for example, stolen goods), the alleged offence and the grounds on which the warrant is issued. If the requirements have not been complied with, the warrant is probably not valid. Warrants are generally issued under the Search Warrants Act 1997. The requirements to be satisfied are set out at section 5 of the Act.
This does not apply to a general warrant issued by the Commissioner of Police to search for stolen goods, issued under the Police Offences Act, s60. This can be issued for up to six months and its issue is not reviewable by a court.
Material which is improperly or illegally obtained by a police officer in executing a search can be used as evidence against an accused unless the court exercises its discretion to exclude it on the grounds that it would be unfair to the accused to use it (Evidence Act 2001, s138). This usually requires a deliberate abuse of power on the part of the police officer obtaining the evidence. This could take the form of deliberate harassment of a person, or deliberately going beyond powers given by statute in order to create a situation in which to search a person.
If goods have been unlawfully seized and detained (called ‘detinue’) or premises have been unlawfully entered (‘trespass’), a civil wrong has been committed. An action can be taken for damages. If damages are under $20,000 the case may be heard by a magistrate in the Civil Jurisdiction of the Magistrates Court. However, it is usually preferable to take the case before a judge in the Supreme Court.
Retention of property
In general, police are not entitled to keep property without the owner’s permission except as a result of arrest or under a warrant, unless the property is material evidence needed to prove the crime, or the refusal of the owner to allow seizure is unreasonable, or on the condition that the property be returned as soon as is reasonably possible.
Generally, it is an offence to resist a police officer in the execution of their duty, see Police Offences Act, 34B.