Search
This page explains when the Police have the power to search your property or search you personally. It also explains what the legal consequences may be if the Police carry out an illegal or unreasonable search.
Searching property
Searching people
Effect of unreasonable or illegal search
Searching Property
The Police can search buildings, outside areas like your backyard, and other places such as vehicles, when they have:
- your consent as the occupier, or
- statutory power - authority given by an Act. The search could be with or without a warrant.
If the Police use a statutory search power, as opposed to relying on your consent, there are certain steps they must follow.
Search of property with your consent
The Police can search buildings, property or vehicles if they have the consent of the occupier.
For your consent to be legally effective, you must:
- understand that you have a choice about whether or not to consent, and
- give your consent freely.
Search must stay within scope of your consent
The search can’t go outside the scope of what you’ve consented to. You might have consented to the Police searching only some of your property, or you might have consented to the Police searching for only a limited time.
Can I withdraw my consent?
You can withdraw your consent at any time. If you do this, the Police must stop the search immediately, unless they’ve established a legal basis to continue the search (for example, they’ve found illegal drugs).
If the Police do find a new legal basis for a search continuing, there are certain steps they must follow.
Search of property with warrant under statutory power
The Police have a general power under the Search and Surveillance Act 2012 to apply to the courts for a search warrant when they want to search a building or other place, such as a vehicle, aircraft or container, for evidence relating to an offence punishable by a prison term.
The Police must provide the court with information to show that they have reasonable grounds for their belief that there is relevant evidence in the place.
A search warrant must state the following in reasonable detail:
- the place to be searched
- a description of what can be seized
- the Act and section number under which the warrant has been issued, and if relevant, the suspected offence
- the period during which the warrant can be executed (this can't be more than 14 days after the warrant is issued, or more than 30 days if the court that issued the warrant is satisfied that a longer time is necessary)
- the number of times the warrant can be executed, if the court has authorised it to be executed more than once (if the court hasn't specifically authorised this, the warrant can only be executed once).
Conditions of search warrants
Search warrants are granted subject to conditions, which usually include the following:
- the Police can only seize items that are referred to in the warrant
- the warrant is valid for one month after the date on which it’s issued
- the Police can execute the warrant at any time of day or night, whether you, the occupier, are there or not
- the Police must have the warrant with them when they execute it. They must show it to you if you ask to see it
- the warrant doesn’t allow the Police to search people found on the premises. However, they can search a person if, while the Police are there, they form a reasonable belief that the person is committing an offence that gives Police a statutory power to carry out a personal search.
Warrants to search for people
In some cases a search warrant may empower the Police to search a place not for items of property but for a person. Examples include:
Search of property without warrant under statutory power
The Police can search buildings and other property without a warrant in certain situations. For example -
- Drugs - The Search and Surveillance Act 2012 allows the Police to enter and search any place or vehicle if they have reasonable grounds to believe that it contains illegal drugs in breach of the Misuse of Drugs Act 1975. They must believe on reasonable grounds that it isn't practicable to get a search warrant and that relevant evidence will be destroyed or interfered with if they don't enter immediately. They can also search any person they find there.
- Weapons - The Search and Surveillance Act allows the Police to enter and search a place or vehicle if they have reasonable grounds to suspect that there are firearms there in violation of the Arms Act 1983, or firearms used in a criminal offence punishable by two or more years in prison. This also applies to ammunition, explosives, restricted weapons and imitation firearms.
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Searching People
The Police can search you personally if:
- you consent to the search
- the Police have the power under an Act to search you, or
- they arrest you.
Search of a person by consent
The Police can search you personally if you’ve given them your consent to this.
For your consent to be legally effective, you must:
- understand that you have a choice about whether or not to consent, and
- give your consent freely.
The search can’t go outside the scope of what you’ve consented to – for example, you might have consented to the Police searching some items of your clothing but not others.
You can withdraw your consent at any time. If you do this, the Police must stop the search immediately, unless they’ve established a legal basis to continue the search (for example, they’ve found illegal drugs).
Search of a person for specific purposes under statutory powers
The Police have some specific statutory powers to search a person. For example -
- Drugs – The Search and Surveillance Act 2012 allows the Police to search you without a warrant if they have reasonable grounds to believe you're in possession of illegal drugs in breach of the Misuse of Drugs Act 1975. The Police can then seize any illegal drugs they find. In certain cases the Police also have the power to enter a property or vehicle to search for illegal drugs, and in those situations they can also search any person they find there.
- Weapons – The Search and Surveillance Act allows the Police to search you personally, without a warrant, if they have reasonable grounds to suspect that you're carrying or have possession or control of firearms in breach of the Arms Act 1983. This also applies to ammunition, explosives, restricted weapons and imitation firearms. The Police can seize any weapons they find.
Search of a person after an arrest
When the Police have arrested you, they can carry out a rub-down search to make sure you're not carrying anything that could be used to harm any person or to help you escape.
In a rub-down search, the person carrying out the search can run or pat their hands over your clothed body, whether outside or inside the clothing (other than your underwear), and can place their hands inside any pocket or pouch in your clothing (other than your underwear). They can require you to remove, lift, lower or open any outer clothing, such as a coat or jumper (unless you have no other clothing, or only underwear, underneath it). They can also require you to open your mouth, to lift or rub your hair, and to show them the palms of your hands and the soles of your feet.
However, the Police can carry out a more thorough search if they have reasonable grounds to believe that you're carrying, or have on you, evidence relevant to the offence for which you've been arrested, or something that could be used to harm any person or to help you escape.
The Police also have a separate power to search, by force if necessary, any person taken into custody - that is, when you're being held at a police station or in a police vehicle or in a place being used for police purposes. This is a thorough search and is usually carried out in the privacy of the police station.
Requirements if the Police search you under a statutory power
If the Police are going to search you under a power granted by an Act, the Police officer must first caution you, which means telling you:
- that you have the right to stay silent
- that you have the right to talk to a lawyer in private without delay, and that you can get free legal advice from a lawyer under the Police Detention Legal Assistance Scheme
- that anything you say can be noted down and used in evidence against you in court.
The Police officer must also:
- identify himself or herself to you and, if the officer isn’t in uniform, produce identification
- tell you the name of the enactment (unless it is impracticable to do so in the circumstances)
Effect of Unreasonable or Illegal Search
Evidence can be excluded if police search is illegal or unreasonable
A search is illegal if the Police didn’t search in accordance with their powers. Further, under the Bill of Rights you’re also protected against unreasonable searches – a search may be unreasonable depending on the particular circumstances surrounding the search and the way in which the search was carried out.
If a search is illegal or unreasonable or both, the Courts may decide to exclude things seized in the search from being used as evidence against you. In deciding this, the courts will take into account:
- the nature of the rights that the Police breached
- the seriousness of the breach of your rights
- the seriousness of the offence that the Police are alleging
- the quality of the evidence and its importance to the Police case.
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(Updated: March 2013)