Do the Police have right to search my home...?

Written on the 18th of December 2009 by Stephen Bourne

Under the law of New South Wales (NSW), Police may enter a home or other premises if they have a search warrant, and may also enter premises without a warrant if they believe someone there has suffered a significant physical injury, or is in imminent danger of significant physical injury, or that entry into the premises is necessary to prevent a breach of the peace.

If they have a search warrant, other than a covert search warrant, Police must produce and serve an "occupier's notice" on the occupier of the premises. That notice sets out the details contained in the warrant. If requested by an occupier, they must also show the warrant to that occupier. If an occupier, having been served with the occupier’s notice, and having had the opportunity to see the warrant, then obstructs the search, he or she can be charged with hindering or delaying the execution of the warrant, or resisting a police officer in the execution of their duty. If, having demanded entry pursuant to a search warrant, Police are refused access, they may use force to enter the premises. A covert search warrant may be executed without the knowledge of the occupier(s) of the premises.

Police must comply with the terms of a search warrant, and a warrant (other than a covert search warrant) cannot be executed at night unless it expressly authorises a search between the hours of 9pm on one day and 6am on the next. Once inside the premises, Police with a search warrant may search all of the premises described in the warrant, and may remove any item mentioned in the warrant, or any other item believed to be connected with any offence.

NSW law also gives Police the right to enter premises, without a search warrant, in the circumstances described in the first paragraph above. In other cases, Police may have been invited into a home or business by an occupier. In both of these scenarios, the issue is what Police can and can't do in that situation. If Police were not invited into the premises, they must remain inside "only as long as is reasonably necessary in the circumstances." If, on the other hand, Police were invited inside, they must leave when an occupier asks them to do so. They may then re-enter the premises if the required grounds exist for entry without a warrant, and may also remain in a dwelling if, having been invited inside, they are investigating whether domestic violence has occurred, or are taking action to prevent domestic violence. However, if, during an investigation of domestic violence, an occupier asks Police to leave, they must comply unless a person believed to be a victim of domestic violence asks them to remain, or there is some other basis for Police to remain inside the premises (such as a crime, or breach of the peace, in progress).

While inside a home or other premises, Police have the same rights as they have outside to stop and detain a person (and anything in a person's control, which might, for example, include items in a person's home), so long as Police suspect on reasonable grounds that an item has been stolen or unlawfully obtained, or could be used in connection with an offence, or if they suspect a person has a prohibited plant or drug in his or her possession. This does not permit a 'fishing expedition', but the discovery of drug-related items (for example) might be a sufficient basis for a search for drugs.

If you have any questions relating to the above, please email Stephen Bourne.

Disclaimer - This article is offered for general information purposes only. It is not offered as and does not constitute specific legal advice or opinion. The accuracy of the information is not guaranteed. You should not act or rely upon any of the information contained within this article without seeking the advice of a qualified solicitor who specialises in the particular area of expertise and jurisdiction that you require.