Search Warrants, House Searches and Arrest
I often get asked: what happens if the police arrive unannounced at my home and want to search my house and arrest me – what can I expect and what are my legal rights?
Source of Police Powers to Search
A police officer cannot simply come to your house and start a search. Doing so is trespass and an invasion of privacy. Various Acts of Parliament govern a police officer intending to search a person’s home often with the intention of making an arrest. The Criminal Investigation Act 2006 (WA), Criminal Investigation (Identifying People) Act 2002 (WA), Misuse of Drugs Act 1981 (WA), Criminal Property Confiscation Act 2000 (WA), Firearms Act 1973 (WA) and Weapons Act 1999 (WA) are all examples of Western Australian legislation governing the powers for police to search people, their houses or cars and arrest people.
The Search Warrant or Having Reasonable Grounds to Suspect a Criminal Offence
Without going into any technical detail, a police officer intending to search someone’s house must have a search warrant saying that an offence is suspected to have occurred within Western Australia, that the offence exists in Western Australian or Commonwealth law, and have all the other necessary details in the warrant application.
However a police officer can, without a search warrant, enter and search a home either with the consent of the occupier, or when the police officer has reasonable grounds to suspect that a person in the house has committed an offence, is committing an offence, or intends to commit an offence.
In my experience when someone is arrested we soon learn that prior to the search of their house the police had carried out surveillance operations on the house and its occupants and on the information gathered they were able to satisfy a Magistrate or Justice of the Peace that grounds existed to “swear out” a search warrant.
When the police arrive at your home – you must be shown the search warrant – if there is no search warrant the police must inform you of what reasonable grounds they have to suspect your involvement in a criminal offence to enter your premises.
Lawfulness of the Search
If a search is lawful then any relevant evidence found during the search can be later used in Court proceedings against you.
If the warrant is defective or the search unlawful, for example when police don’t have reasonable grounds to enter your premises, then whatever is found may not be admissible in Court and the subsequent arrest could be rendered invalid. An issue arises when the search is unlawful but something is found, such as drugs. I’ll deal with that situation in another blog so for now I’ll proceed on the basis that the search warrant is valid.
Actual Steps in the Search Process
Ok so you hear a tap on the door and upon opening it there is a police officer surrounded by other police officers. The one at the door, let’s say he is the Investigating Officer referred to as an IO, produces the search warrant, bringing the details to your attention. He asks permission to enter with the other police officers to conduct a search – he may not say up front what they are searching for.
Police Roles in the Search
Now each police officer invariably has a role to perform. As mentioned above there will be an IO, and in this example, he is the one with oversight of the search process and any subsequent arrests and interviews conducted back at the police station.
Then there is the video camera operator – every search must be filmed – what often happens is the camera will only be turned on when they find something suspicious, which is said to be done to conserve battery power. The IO will caution you about saying anything during the search as it may be used against you later in Court.
Legal issues may arise if the owner or occupier of the house is asked a lot of questions when the video camera is turned off so don’t get into any chit chat whether the video camera is on or off.
There’s also an evidence officer who records on a form the nature of the item seized, where the item was found and the name of the officer who found the item.
Do the Police Plant Evidence?
There are then accompanying police officers who actually do the search – they may carry out their search tasks in view of the video camera and most often some are going through other parts of the house, often without you or the video camera operator being present. And yes you might ask – could those officers plant evidence? Although it’s certainly possible, in my experience it’s not likely. It’s fair to say that police officers are not only making sure that they are behaving properly, but are also taking stock of what the other officers are up to.
Also keep in mind that the penalties for planting evidence are substantial and invariably result in jail time.
Right to Silence – Say Nothing
At this point the police have arrived at your doorstep and suspect you of an offence and are about to commence their search. The search commences with you in tow showing the police officers around the house. You will be given your rights including your RIGHT TO SILENCE, which means you do not have to saying anything.
You will also be asked if you want to speak to a lawyer – SAY YES at the beginning of the search. Or sometimes when something unlawful is found the police will stop the search and then give you the opportunity to speak to a lawyer – take that opportunity if you haven’t already done so.
Getting Legal Advice from a Criminal Lawyer
The police often do a GOOGLE search and my website, criminal-lawyer-perth comes up. I get telephone calls right throughout the night from police saying they are about to search a house and the suspect needs to speak to a lawyer, or they are during the course of a search and have found something suspicious.
My advice is always – DO NOT SAY ANYTHING – cooperate with the police by providing your name and address.
If something unlawful is found or the police are simply of the belief that they have reasonable grounds to suspect your involvement in any unlawful activity they will arrest you. You will be taken in a police vehicle to a police station – generally one that operates 24-hours such as Northbridge, Mirrabooka, Cannington or Joondalup. I’ll go over what you are likely to experience once you get to the police station in another blog.
Advice from a Criminal Lawyer
For now let me say that if the police arrive on your doorstep cooperate only to the extent of making sure the search warrant is valid, as best you can, and providing access to your home, giving them your name and date of birth and making sure that you get to speak to an experienced solicitor when choosing a criminal lawyer.
I am the Legal Practitioner Director of Saupin Legal and I receive telephone calls from the police at all hours of the day to provide legal advice to suspects. The common advice I give people suspected of criminal activities is that lawyers can keep you out of jail, but a client saying too much to police often results in them being one step closer to imprisonment.
I’ll shortly provide a blog on police powers to stop and search your motor vehicle and as I said above a blog about what happens if you are arrested and taken to a police station to be interviewed.
The above represents information only and is not to be taken as providing legal advice. If you want to know more about this topic we recommend visiting our website, or contact us or call one of our criminal lawyers directly on 0422 656 589.
Dr Marc Saupin Legal Practitioner Director Barrister and Solicitor Criminal-Lawyer-Perth