One aspect of law in Australia which criminal lawyers are often asked about relates to police searches, and in particular, what an individual’s rights are if the police wish to search them.
Queries relating to when the police can search you, what they can search, and what the rules are, are most common, so we shall try to answer these as best we can.
First, we need to outline the differences between the types of searches the police can conduct, as each has a specific set of regulations. The two distinct search types are personal search, and property search, and whilst they might seem self-explanatory, let us try to eliminate any confusion as to what they each mean.
Personal searches are those which the police conduct with respect to the clothing you are wearing, and as well as requiring you to remove clothing in order to search you, body cavities can also be searched. Property searches are those which are conducted in your home or your vehicle.
Whether the police wish to carry out a personal or a property search, you do have rights, and one of the core ones is the right to remain silent. Other than providing the police with your name and address, you do not need to say anything, and that includes answering questions, which police often ask as searches are being conducted.
Another important principle is that the police cannot simply demand that they search you, your home, or your vehicle except in specific circumstances. These include when they have a warrant to conduct the search, or in scenarios where the law grants them the right to search without a warrant.
For personal searches, these scenarios include when they suspect that you are about to commit an offence, to protect a young person, to look for items associated with a crime, or to ensure the security of public places.
The police also do not need a warrant to search you whilst you are in police custody, although, there are rules regarding having someone of the same gender or a doctor present for strip searches and body cavity searches relating to drug offences
When it comes to property searches, normally a warrant is required, but again, certain exemptions exist, so that even if you do not give the police permission to enter, they still have the right to conduct the search.
Where no warrant exists, the police may attempt to enter, but they must identify themselves as police before doing so. They must also advise you as to why they are entering. This can be when they believe that someone in the property has committed an offense, is planning an offense, or is actually committing an offense at that time.
As well as the right to remain silent as previously mentioned, you, or someone you nominate, also have the right to observe the search as the police are conducting it, albeit, whoever is observing must not hinder the search in any way.
When a property search is being conducted, in addition to the main investigating officer, there are certain other officers who must be present
These include the evidence officer who notes and records each item of evidence, including which police officer discovered it, a video camera operator, who videos the search as it is being conducted, plus any accompanying officers who are assisting with the search.
Throughout any search, do nothing to obstruct the police, try to remain calm, stay silent if you wish to, and remember you are entitled to seek legal help and advice, at all times.