When are the police allowed to enter my house?
In Queensland, the general rule is that the police are not allowed to enter your house, unless certain circumstances exist (which are discussed below). If they attempt to do so your are legally allowed to tell them that they are not allowed to enter your house and this is best achieved by stating that you have not invited them in and therefore do not consent for them to enter or remain on your property.
However, there are exceptions to this rule, meaning that the police are allowed to enter your house under certain circumstances. These can be broken down into two categories; if they have a search warrant, and if they don’t have a search warrant.
What is a search warrant?
A search warrant is a document which allows the police to enter your house and to do certain things or to seize certain property. It is a document that the police must first obtain from a person authorised to provide one, such as a Justice of the Peace, Magistrate from the Magistrates Court or Justice from the Supreme Court.
In order to obtain the search warrant, the police must provide a sworn statement outlining the reasons why the search warrant is required and justified. Therefore, they must provide very brief information about the evidence they’ve already gathered and why the search warrant is required. If the person they are applying to is satisfied that reasonable grounds exist justifying the issuing of a search warrant, a search warrant will be approved.
A search warrant is a formal document and must set out the following things:
- Address that the police are allowed to enter.
- Dates that they are allowed to enter. Unless there is some unusual circumstance, search warrants are only valid for 7 days from the date that they are signed.
- The nature of the offence being investigated.
- Whether or not the police are able to damage or destroy any property. The power for the police to do this is only available if the search warrant was authorised by a Supreme Court Justice.
- The times that the police are allowed to enter. Unless there is some unusual circumstance, search warrants are not able to be executed during the night time.
- What the police are allowed to seize (for example, bank statements, mobile phones, computers etc.).
What if the police don’t have a search warrant?
There are some circumstances in which the police can enter a person’s home without a search warrant.
One common example is if they reasonably suspect that evidence of an indictable (serious) offence is inside a person’s property and that the evidence may be concealed or destroyed unless they immediately gain entry to search. This is what is known as an ‘emergent search’, meaning that the police believed that there were urgent reasons why they had to enter then and there and going to get a search warrant was not available to them due to the urgency of the situation.
In such a situation, what the police are required to do thereafter to protect themselves from later being criticised is to then obtain a ‘post search approval order’. This is similar to a search warrant, except it is obtained after the police have already performed the search. If this document is issued, it validates the police search in case it is later suggested that the police entered the house unlawfully.
Other examples of times where the police can enter a person’s home without a warrant are if they are required to serve legal documents (such as subpoenas to attend court, notices of seizure of property etc.), to arrest somebody who they believe is inside of the home or to enter a crime scene.
Am I obliged to answer any questions put to me by the police?
Extreme caution should be exercised when answering any questions made by the police during the execution of a search warrant. If time permits, the best practice would be to contact a criminal lawyer to be present during the search warrant execution.
The conversations which take place during a search warrant execution are usually recorded via audio and sometimes video as well. The police are not obliged to warn a person that they are being recorded and any information that is provided to the police can be admissible against a person if they are subsequently charged with criminal offences.
Therefore, the situation should be treated as though it is a formally recorded police interview, which means that a person has all of the usual rights to silence.
Can search warrants be challenged?
Yes, they can, and Cridland & Hua Lawyers have had numerous matters in which the challenges were successful.
Generally speaking, unless there is some clear defect on the face of the search warrant, the only time to challenge a search warrant is often after it has already been executed. That is because the search warrant is a basic document only and the reasons for challenging it are often not known until much later on in the matter, when it is already before the courts.
In our next article we’ll give some examples of how we’ve managed to successfully challenge police search warrants, leading to the dismissal of charges against our clients.
If you’re needing advice or assistance with legal matters (including Apprehended Violence Orders); Cridland & Hua are the specialists amongst Brisbane Law Firms. Contact us today.