What rights do you have in NSW when police have a search warrant?

The law relating to police search warrants differs in each state, so it is important to speak to a criminal lawyer at George Sten & Co Criminal Lawyers for legal advice about search warrants in New South Wales. At George Sten & Co Criminal Lawyers, we only practice criminal law, which means that our lawyers deal with cases similar to yours on a daily basis. We are constantly updating our knowledge as laws evolve and have vast experience when it comes to search warrants. If you have been served with a search warrant, or think that you may be in the future, then you should contact one of the knowledgeable lawyers at George Sten & Co Criminal Lawyers to find out your legal rights. You can phone us on (02) 9261 8640 or email us at [email protected]. If you require legal advice out of ordinary business hours, then do not hesitate to call us now on our 24 hour phone line: 0412 423 569.

What is a search warrant?

A search warrant is a written order that is made by a judicial officer. It gives the Police the power to search premises to which the order applies. If you have not given the Police permission to enter your premises for a search, then they will require a search warrant in order to enter and search your premises.

In New South Wales, the following laws apply to search warrants:

• Part 5 of the Law Enforcement (Powers & Responsibilities) Act 2002, and
• Division 3 of the Crime Commission Act 2012 (NSW) 2012, and
• Section 3E of the Crimes Act 1914 (Cth).

In New South Wales, Police have a right to search a person without a search warrant. In order to this, the Police must have reasonable grounds to believe that the individual in question is in possession of one of the following:

• A dangerous weapon; or
• Illicit drugs; or
• Stolen, or unlawfully obtained property; or
• An object to commit a crime, or cause harm to themselves, or to another.

Application for search warrants

A police officer may make an application for a search warrant relating to any premises, if they believe that, on reasonable grounds, there is or there will be within 72 hours, something related to a searchable offence, found on the premises.

As a requirement, the applicant must set out why the Police have reason to search the premises and why they believe that they will find evidence there. The judicial officer granting the search warrant must be convinced that the Police do have reasonable grounds for believing that evidence will be found on the premises and furthermore, that the discovery of such evidence will result in an arrest. The offence in question must fall under one of the ‘searchable offence’ categories named under section 46A of the Law Enforcement (Powers & Responsibilities) Act 2002. These include:

• An indictable offence
• An offence relating to firearms or prohibited weapons
• An offence relating to narcotics
• An offence relating to robbery or unlawful attainment
• An offence relating to children abuse material, more commonly known as child pornography.

If a search warrant is granted, it will last for 3 days. The judicial officer granting the search warrant may extend this period of time. The Police must report back to the judicial officer who granted the search warrant within 10 days of searching the premises to which the warrant applies.

Covert search warrants

A covert search warrant is a search warrant that is granted without giving the occupier of the premises, which the warrant relates to notice that a warrant has been granted. This type of warrant cannot be granted in all circumstances. In order to apply for this, the following requirements must be fulfilled:

1. the person giving the authorisation suspects on reasonable grounds that there currently is, or there will be within 10 days, something relating a searchable offence, and
2. the person giving the authorisation considers that it is necessary for the entry and search, that the occupier of the premises does not know that the search will occur.

Only specific people may apply for a covert search warrant. These are:

• A police officer with the rank of Superintendent or above, or
• The Commissioner or Assistant Commissioner for the Police Integrity Commission or an employee of the Police Integrity Commission who has permission to make such application, or
• The Commissioner or Assistant Commissioner for the New South Wales Crime Commission or an employee of the New South Wales Crime Commission who has permission to make such application.

Criminal Organisation Search Warrants

Similarly to a covert search warrant, only a police officer holding the rank of Superintendent or above may apply for a criminal organisation search warrant.

This type of warrant will only be applied for if the person applying has reasonable grounds to believe that there is or there will be within 7 days, something related to a searchable offence found in the premises.

Occupier’s Notice

Under section 67 of the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW), an eligible issuing officer must prepare and give an occupiers notice to the occupier of the premises to which a search warrant has been granted. This occupier must be at least 18 years of age. This notice must include 3 vital pieces of information:

• The name of the person who applied for the warrant, and
• The date and time when the warrant was issued, and
• The address of other description of the premises to which the warrant applies.

This warrant must be served upon entry into the premises or if an occupier is not present at the time, within 48 hours of the execution of the warrant.

The execution of the warrant refers to the carrying out of the search to which the warrant relates. If you think that the Police may not have carried out their obligations with regard to the execution of a search warrant, or if Police have failed to provide occupier’s notice, then you should contact George Sten & Co Criminal Lawyers as soon as possible. Our experienced lawyers can guide you through your legal case and can assist with any questions that you may have. To find out how we can assist you, contact our friendly team on (02) 9261 8640. Alternatively, you may email us at [email protected].