Search warrants in Queensland

What a warrant is

A search warrant is an order authorising police to search a place, a vehicle or belongings for evidence of an offence.

It is issued by a magistrate or, in some cases, a justice of the peace, on sworn application by police. To obtain one, police must establish reasonable grounds for suspecting that evidence of an offence is at, or is likely to be taken to, the place.

The warrant defines the boundaries of the search. Police may do what it authorises and no more.

Police can also search without a warrant in defined circumstances under the Act, which is a separate topic. This article deals with warrants.

How they are obtained

Police must apply to a magistrate or justice of the peace and provide sworn information setting out the grounds. In urgent cases the application can be made by phone or other electronic means.

The application must identify the offence, the grounds for the suspicion, and what is being looked for and where.

If granted, the warrant itself states:

• the premises to be searched;
• the evidence police are authorised to look for;
• the period during which the warrant may be executed;
• any additional powers granted, such as opening locked areas, detaining people at the premises, or requiring access information for a digital device.

That last one has become the most consequential. An order requiring you to provide a PIN or password for a phone or computer is a specific power. It has to be on the warrant.

What it looks like in practice

You run a business from home in Brisbane. Police arrive on a Monday morning saying they hold a warrant to search the premises following a report about allegedly stolen goods in the garage.

An officer shows you the warrant. It states your address and identifies the things sought.

You read it before anything else happens. You check the address, the things listed and the period. The search proceeds. Anything seized is recorded and you are given a receipt.

That is the version where you know what you are doing. The other version involves an argument in a driveway that ends in an obstruct police charge.

Your rights during a search

1. Ask to see the warrant

Read it. Check that the address is yours, that the items sought are described, and note any conditions or additional powers, such as a requirement to provide access information for a device.

If something is wrong, say so calmly and note it. Do not obstruct the search over it. The place to argue about a defective warrant is a courtroom, where the remedy is exclusion of the evidence.

2. Say nothing beyond your name and address

You must give your name and address if required. Beyond that you are not obliged to answer questions, and you should not. A useful form of words: "I am not going to answer any further questions until I have spoken to a lawyer."

This is not obstruction. It is the right to silence, and exercising it politely is not evidence of anything.

3. Reasonable and respectful conduct

Police must not use unnecessary force and must not cause unnecessary damage. Damage that is authorised by the warrant, such as forcing a locked container that is named, is a different matter.

4. Contact a lawyer

You are entitled to make that call while the search is under way. Advice at the time is worth considerably more than advice afterwards.

Six steps when police arrive

1. Stay calm. Be polite and do not escalate, even if you believe the search is unlawful. Nothing you gain by arguing outweighs an obstruct police charge.
2. Ask for identification and the warrant. Note the officers’ names and stations. Photograph the warrant if you can.
3. Do not consent if consent is not required. If no warrant is produced, say clearly, "I do not consent to this search," and note anyone who heard you say it. Consent removes arguments you would otherwise have.
4. Observe. You may watch the search provided you do not interfere. Note anything that appears to go beyond the warrant, such as searching for things not listed or causing damage that is not authorised.
5. Keep your answers short. Name and address, then nothing further until you have advice.
6. Get the receipt. Police must give a receipt for seized property. Check it is complete, including any cash, and keep it.

Afterwards

Write down everything while it is fresh: times, who attended, what was said, what was taken, what rooms were entered.

Then get advice. How and why the warrant was issued determines what happens next, and the sworn application can be obtained.

If evidence was obtained improperly, the court has a discretion to exclude it. That argument is built on detail recorded on the day, not on recollection six months later.

See our page on police powers and offences.