Being searched

Searching your home

When you can refuse entry to police

Generally, police do not have an automatic right to enter your locked grounds or force their way into your home. If police do not have a specific legal right to enter your home, you can refuse them entry.
If you do not give consent for a police officer to enter your home, state clearly that you:

  • are not inviting the officer in
  • do not consent to the police officer remaining on any part of your land or property.

Be firm but polite, and don’t swear at the police. If police are recording their conversations with you, they can use anything you say as evidence against you.

Record the names of any witnesses who see and hear you refusing to allow police to enter your home.

However, police may enter your property without your consent in certain circumstances, which are outlined below.

Entry with a warrant

If the police say that they have a warrant that justifies entering your home, insist on seeing it. They must give you a copy of the warrant. Note any details that seem incorrect.

Even if police have a warrant, they can stay for only a reasonable time (explained below) to carry out the action that the warrant allows.

As well as a copy of the warrant, the police must give you a statement of their powers under the warrant, such as:

  • detaining anyone present to find out if they have anything sought under the warrant
  • removing wall panels, floor panels and ceiling panels while searching for evidence
  • taking photographs of things that might be evidence, even if they don’t seize them
  • digging up your yard
  • seizing things as evidence
  • opening locked items such as a safe, filing cabinet and cupboards
  • searching individuals on the premises.

Police cannot damage a building’s structure unless a supreme court judge has allowed this in the warrant.

When police can enter your home without your consent

Police can enter your yard and home without your consent:

  • to hand over or serve a legal document
  • in urgent circumstances, such as when a person has been seriously injured or is about to be harmed
  • to investigate a traffic offence, e.g. to take a breath test for alcohol
  • to catch someone who has escaped from prison or from being arrested
  • to search for evidence if they reasonably suspect it may otherwise be hidden or destroyed
  • to arrest someone
  • to reach a crime scene
  • to detain someone under an anti-terrorism ‘preventative detention order’—if they reasonably believe that the person they’re looking for is on your property.

What is reasonable time?

A reasonable time is the time needed to ask questions and make reasonable observations or investigation.

If police need to enter your property to arrest or detain someone (either with or without a warrant), or to enforce a warrant, they can enter the property and stay for a reasonable time to allow them do their job.

What is reasonable suspicion?

Police can enter your property to arrest or detain someone only if they reasonably suspect that the person is there. The definition of ‘reasonable suspicion’ is difficult to define.

However, the courts state that there needs to be some fact that would cause a reasonably minded person to conclude something.

The police officer’s suspicion does not ultimately have to be right, only reasonable.

Answering questions during a search

Although formal police interview procedures have built-in safeguards, these safeguards may be voided if you make a confession to police during a search. Therefore, you should not answer police questions while they’re searching your home. Contact a lawyer as soon as possible.

Read more about being questioned by police.

If police cause damage

If police damage your property during a search, you won’t necessarily be compensated, especially if the warrant allows forced entry, or police find drugs or other evidence of an offence during the search.

However, if you unfairly suffer loss due to police conduct towards your property, contact the senior police officer involved in the matter.

Police don’t have to ‘tidy up’ after searching your property. However, if you think police made an unreasonable mess during a search on purpose, you can make a complaint, by going to your local police station.

Find out how to make a complaint against a police officer.

Searching you, your belongings or your car

When police can search you or your belongings

Police do not have an automatic right to search you or your personal property. However, they can conduct this search, even without a warrant, if they reasonably suspect that you have the following items on you or in your car:

  • a weapon (e.g. a knife, explosives or an unlicensed gun)
  • illegal drugs or drug implements
  • stolen or unlawfully obtained property
  • graffiti instruments
  • tools used for housebreaking or car stealing
  • something you intend to use to harm yourself or someone else with
  • evidence of certain breaches of the Liquor Act 1992 (e.g. drinking alcohol in a public place)
  • some evidence of either an offence punishable by 7 years jail or wilful damage.

The police must protect your self-respect during the search.

Police must not conduct searches in view of security cameras. If police seize any of your clothes for evidence, they must ensure that you have adequate alternative clothing.

If you do not consent to be searched

If police do not have a lawful reason to search you or your bags and you haven’t consented to a personal search, a court might refuse to consider evidence found in the search.

If you don’t consent to a search, clearly state this to police. Make a note of any witnesses to the conversation.

If police ask to go through your phone or computer, you can refuse. They will then need a warrant to search this property.However, they may seize the items until then. They can also obtain court orders requiring you to give police your security passwords or codes for these devices.

Police obligations during the search

While searching you, police must:

  • respect your dignity
  • cause minimal embarrassment
  • limit a public search to a frisk search, if possible
  • conduct more thorough searches away from public view, if possible
  • have a police officer of the same sex conduct the search, unless an immediate search is required. Alternatively, a doctor may conduct the search.

Police must not detain you for longer than necessary. Once they’ve formed a reasonable suspicion, they can search your bags, pat down (or frisk) your outer clothing and feel through your clothes for concealed items. In more limited circumstances, they can conduct a strip search.

Strip searches

In a strip search, you remove your clothes so the police can search you. However, this doesn’t mean that police are allowed to search your body cavities.

Police can conduct a strip search only in certain circumstances, such as where they reasonably suspect that you possess an unlawful weapon or knife, an unlawful drug, stolen property or evidence of a serious offence.

They must respect your privacy during the search.

A police officer of the same sex as you should conduct the strip search in a private space. They must allow you to remain partly clothed while conducting the search—for example, allowing you to keep your pants on while your chest is bare and your shirt on while your pants or skirt are off.

They must tell you why the search is necessary.

Police must conduct a strip search as quickly as possible and allow you to dress as soon as possible after they have finished.

Police can’t improperly touch you during the search, or conduct an internal physical examination without either a court order or your consent. They can’t touch your anal or genital areas. Police can ask you to raise your arms over your head and bend over to allow a visual inspection.

When police take your property

Taking your property

Police may take your property in some situations, such as if you have illegal drugs, stolen property, unlicensed guns, child pornography or something else that might be evidence of an alleged offence.

Police may also take vehicles that they suspect have been used to commit an offence, and items possibly obtained through criminal activity.

If police find evidence of suspected crime on you or on your property, they may seize that property as evidence while they investigate or prosecute their case against you or someone else.

If police arrest you and take you to the watch-house, they’ll probably ask you to give your property to an officer while you’re in custody. If you’re released, they’ll return your property to you.

Returning your property

After taking your property, police must give you a receipt as soon as possible. If a court finds you guilty of an offence, the magistrate or judge may order to destroy or confiscate the property.

Otherwise, you can apply to have your property returned after 28 days if it’s not illegal property, such as drugs. There may be a delay before your property is returned.

After 30 days, you can write to the police commissioner asking them to return your property if it’s not needed as evidence.

You’ll need to provide proof of your right to the property. If the police commissioner declines your request, you can also apply to the Magistrates Court.