Search and Seizure Without a Warrant

Reasonable Belief and Reasonable Suspicion

Although reasonable belief and reasonable suspicion may seem like the same thing, they are two different standards at law. Reasonable suspicion is a lower standard, requiring ‘I suspect but I cannot prove’. Belief ‘is an inclination of the mind towards assenting to, rather than rejecting, a proposition’. Simply but: suspicion is like a teetering seesaw, and belief is a seesaw with one side more heavily weighted. Different provisions in statutes will set a standard of reasonable belief or reasonable suspicion.

The statutes that apply most frequently for the purposes of search are: the Police Offences Act 1935 (Tas) and the Misuse of Drugs Act 2001 (Tas).

The police have the power to search a hawker’s pack if he reasonably supsects that it contains stolen goods or goods that it is unlawful to sell (s57A, Police Offences Act).

The police have the power to stop, search and detain any person reasonably suspected to have anything in their possession which is stolen, unlawfully obtained or intended for use in committing an indictable offence.

Stolen Goods

Police have the power to seize suspected stolen goods from a person if the seizure does not cause any harm to the person in the course of the seizure. For example, if the person has a shopping bag the police can seize this, but if the person is wearing stolen underwear, or jewellery, the nature of the item may cause the seizure to be an assault.

Drugs

Under the Misuse of Drugs Act 2001 (MODA) section 29, police officers must have reasonable belief before they can search a person, conveyance, or animal for a controlled substance (drugs).

There are also powers of personal search under MODA section 30, which can mean a cavity search. If a police officer reasonably suspects the presence of controlled substances in a person’s rectum or vagina, they must have a magistrate’s order allowing a medical practitioner to search the person’s body cavity or cavities. Strip searches can be performed if the necessary standard of reasonable belief has been reached.

Other powers in regard to drugs are contained within the Poisons Act 1971 (Tas). Many of the powers are similar in the MODA and the Poisons Act for search and seizure. The Poisons Act authorises the seizure of money or valuables where the MODA does not do so.

Premises

Police can search a person or premises for the purposes of investigating a crime when the owner or occupier consents to the search. Other than in the situations covered by statute, police cannot lawfully enter or remain on premises uninvited merely to question a person. If the person does not consent then a search warrant is required. However, if police are entering premises for the purposes of arrest, they have the power to search the premises if they have reasonable grounds for believing that a person named in a warrant for arrest is present (s26A, Criminal Code Act 1924 (Tas)). They can also enter premises if they reasonably suspect that a breach of the peace, or other offence, is likely to take place. If someone is arrested on the premises, police can enter the premises, without a warrant, and search that person and their possessions.

A police officer has the power to enter and remain at premises so long as they consider it necessary to protect a person from violence. This is a special power under state domestic violence legislation that is mainly used in domestic violence situations (s10, Family Violence Act 2004 (Tas)).

Firearms

The Firearms Act 1996 (Tas) allows police to search a person, any vehicle, package or thing in that person’s possession and seize any firearm or ammunition found. It also empowers them to retain, inspect and copy any record or document that appears to indicate an offence under the Act. Warrants usually require a police officer to apply to a magistrate or justice of the peace for the warrant.