Searching Persons Without a Warrant

Searching persons without a warrant (see sections 29 & 30 of the Police Powers and Responsibilities Act 2000)

A police officer may, without a warrant, do any of the following:

(i)       stop and detain a person;

(ii)      search a person and anything in the person’s possession for anything relevant to the circumstances for which the person is detained;

if the police officer reasonably suspects a person:

(i)       has something that may be:

(a)      a weapon, knife or explosive the person may not lawfully possess, or another thing that the person is prohibited from possessing under a domestic violence order or an interstate domestic violence order;  

(b)      an unlawful dangerous drug;  

(c)      stolen property;  

(d)      unlawfully obtained property;  

(e)      tainted property;  

(f)      evidence of the commission of a seven year imprisonment offence that may be concealed on the person or destroyed;  

(g)     evidence of the commission of an offence against the Criminal Code, section 469 (Willful damage) that may be concealed on the person or destroyed if, in the circumstances of the offence, the offence is not a seven year imprisonment offence; or

(h)      evidence of the commission of an offence against the Summary Offences Act 2005, section 17, 23B or 23C (e.g. possession of a graffiti instrument or selling spray paint to a minor);

         (ii)      possesses an antique firearm and is not a fit and proper person to be in possession of the firearm because:

(a)     of the person’s mental and physical fitness;

(b)      a domestic violence order has been made against the person; or

(c)      the person has been found guilty of an offence involving the use, carriage, discharge or possession of a weapon;

        (iii)     has something that may have been used, is being used, is intended to be used, or is primarily designed for use, as an implement of housebreaking, for unlawfully using or stealing a vehicle, or for the administration of a dangerous drug;

(iv)     has something the person intends to use to cause harm to himself, herself or someone else;

(v)      the person is at a casino and may have contravened, or attempted to contravene, section 103: ‘Cheating’ or section 104: ‘Unlawful use of certain equipment etc’ of the Casino Control Act 1982;

(vi)     has committed, is committing, or is about to commit:

(a)     an offence against the Racing Act 2002;  

(b)     an offence against the Corrective Services Act 2006, section 128: ‘Taking prohibited thing into corrective services facility or giving prohibited thing to prisoner’; section 129: ‘Removing things from corrective services facility’ or section 132: ‘Interviewing and photographing prisoner etc.’; or the repealed Corrective Services Act 2000, section 96, 97 or 100; or

(c)     an offence that may threaten the security or management of a prison or the security of a prisoner.

The police officer may seize all or part of a thing:

(i)     that may provide evidence of the commission of an offence;

(ii)    that the person intends to use to cause harm to himself, herself or someone else; or

(iii)    that is an antique firearm and the person is not a fit and proper person to be in possession of the firearm because:

(a) of the person's mental and physical fitness;

(b) a domestic violence order has been made against the person; or

(c)      the person has been found guilty of an offence involving the use, carriage, discharge or possession of a weapon. 

Conduct of a search (see sections 624 - 626 of the Police Powers and Responsibilities Act 2000)

A police officer searching a person must:

(i)       ensure, as far as reasonably practicable, the way the person is searched causes minimal embarrassment to the person;

(ii)      take reasonable care to protect the dignity of the person;

(iii)     unless an immediate and more thorough search of a person is necessary, restrict a search of the person in public to an examination of outer clothing (for example, a more thorough search may be immediately necessary because a police officer reasonably suspects the person to be searched may have a bomb strapped to his or her body or has a concealed firearm or knife); and

(iv)     if a more thorough search of a person is necessary but does not have to be conducted immediately, conduct a more thorough search of the person out of public view, for example, in a room of a shop or, if a police station is nearby, in the police station. 

Unless an immediate search is necessary, the person conducting the search must be either:

(i)      a police officer of the same sex as the person to be searched; or

(ii)      if there is no police officer of the same sex available to search the person – someone acting at the direction of a police officer and of the same sex as the person to be searched; or

(iii)     a doctor acting at the direction of a police officer.

If it is impracticable to search for a thing that may be concealed on the person where the person is, the police officer may take the person to a place with adequate facilities for conducting the search (e.g. to search a person out of public view and cause minimal embarrassment to the person, a person in a casino may be taken to another room in the casino). However, before taking the person to another place for a search the police officer must consider the following:

(i)      whether the thing sought may be concealed on the person;

(ii)     whether, for an effective search, the search should be conducted somewhere else; and

(iii)     the need to protect the dignity of the person. 

In addition, a police officer who detains a person for a search must not detain the person any longer than is reasonably necessary to conduct a search of that person.

Obstruction of a search (see section 628 of the Police Powers and Responsibilities Act 2000)

If a person (the obstructing person) obstructs a police officer conducting a lawful search of the person, or another person, a police officer must, if reasonably practicable:

(i)       warn the obstructing person it is an offence to obstruct a police officer in the performance of the police officer’s duties; and

(ii)      give the obstructing person a reasonable opportunity to stop obstructing the search.

Examples of when it may not be reasonably practicable for a police officer to comply with points (i) and (ii) above include:

(i)       there is an immediate or sudden need to use force because, for example, the person is struggling with a police officer; or

(ii)      there is a reasonable expectation that, if warned, the person may immediately dispose of, or destroy, evidence; or

(iii)     an immediate search is necessary to protect the safety of any person.

Searches involving the removal of clothing (see sections 629 - 632 of the Police Powers and Responsibilities Act 2000)

A police officer conducting a lawful search of a person under the Police Powers and Responsibilities Act 2000, may require a person to remove all items of clothing or all items of outer clothing from the upper or lower part of the body.  However, this does not apply to a frisk search under s. 569 of the Police Powers and Responsibilities Act.

If reasonably practicable:

(i)     the police officer must, before conducting the search:

(a) tell the person he or she will be required to remove clothing during the search;

(b) tell the person why it is necessary to remove the clothing; and

(c) ask for the person's cooperation; and

(ii)      the person must be given the opportunity to remain partly clothed during the search, for example, by allowing the person to dress his or her upper body before being required to remove items of clothing from the lower part of the body. 

The search must be conducted:

(i)       in a way providing reasonable privacy for the person (reasonable privacy may be provided by conducting the search in a way that ensures, as far as reasonably practicable, the person being searched cannot be seen by anyone of the opposite sex and by anyone who does not need to be present); and

(ii)      as quickly as reasonably practicable and the person searched must be allowed to dress as soon as the search is finished. 

The police officer conducting the search must not make physical contact with the genital and anal areas of the person searched, but may require the person to hold his or her arms in the air or to stand with legs apart and bend forward to enable a visual examination to be made. 

Furthermore, if the police officer seizes clothing because of the search (e.g. where the clothing may be evidence of the commission of an offence), the police officer must ensure the person is left with or given reasonably appropriate clothing.

If a person to be searched is a child, or a person with impaired capacity, who may not be able to understand the purpose of the search, the police officer must conduct the search in the presence of a support person.  However, the police officer may search the person in the absence of a support person if the police officer reasonably suspects:

(i)    delaying the search is likely to result in evidence being concealed or destroyed; or

(ii)   an immediate search is necessary to protect the safety of a person. 

If a video camera monitors the area where the person is searched, the police officer must, unless the person viewing the monitor is a police officer of the same sex as the person being searched:

(i)    ensure the camera is turned off; or

(ii)   conduct the search out of view of the camera. 

However, if, for safety or operational reasons, a video camera used to monitor the place of search can not be turned off without turning off a video camera used to monitor another place, the monitor for the video camera for the place of search must, if it is reasonably practicable, be turned off or used to monitor another place while the person is being searched.

If the video camera is not turned off, a recording of the search must not be shown to anyone other than:

(i)    the person searched or his or her lawyer;  

(ii)    a doctor treating the person searched;  

(iii)   a person deciding if a proceeding is to be started against the person for an offence;  

(iv)   a police officer investigating an offence involving the person;  

(v)    a police officer, lawyer, public prosecutor or witness involved in a proceeding against the person; or

(vi)    a court.

Searches of persons in custody (see sections 442 & 443 of the Police Powers and Responsibilities Act 2000)

A police officer may search and re-search a person if the person:

(i)     is lawfully arrested;

(ii)    is in lawful custody for an offence that has not been decided;

(iii)    is in custody under a sentence for a term of imprisonment or, for a child, a detention order; or

(iv)    is otherwise lawfully detained under another Act. 

The police officer may seize from the person anything found during the search that the police officer reasonably suspects may provide evidence of the commission of an offence.

Also, the police officer may take and retain, while the person is in custody:

(i)     anything that may endanger anyone's safety, including the person's safety;

(ii)     anything that may be used for an escape; or

(iii)    anything else you reasonably consider should be kept in safe custody while the person is in custody.