Can the police enter my home?
In Victoria, police generally require a warrant to enter and search private property. However, there are exceptions to this general rule existing under statute and common law.
There are three ways police are permitted to gain entry to your property. The police may enter your property with:
- your consent;
- a warrant; or
- an existing right or lawful excuse under statute or common law.
If the police are at your door without a warrant and you do not want them to enter your property, you should make that clear at the outset. If it turns out the police have not entered with a lawful excuse or authority, they become trespassers and this is something that can be challenged at a later date.
It is important to know that although you may initially consent to police entering your property, that consent can also be revoked. If nothing illegal has been found at the point consent is revoked, the police must leave, after being given a reasonable amount of time to do so.
Police can enter private property. The police are permitted to come as far as the front door without invitation, like anybody else, but once it is made clear that they are not welcome then they must retreat to the outer boundaries of your property.
This article will examine some of the exceptions and circumstances in which the police can enter your home without your consent and without a warrant.
When the police can enter your property without your permission
- Arrest warrant: Under section 64 of the Magistrates Court Act 1989, an arrest warrant carries with it the power to search any property where the person described in the warrant is suspected to be.
- Search for person suspected of committing an indictable offence: Under section 459A of the Crimes Act 1958, police have the power to enter a property in order to search for a person they suspect has committed a serious indictable crime. This power only allows police to search for the suspect, not to seize property. However, the discovery of illegal property in accordance with lawful entry may be authorised under other powers under statute or common law.
- Suspected family violence: Section 157 of the Family Violence Protection Act 2008 permits entry without a warrant to a person’s property where it is suspected that family violence has occurred.
- Hoon and drug offences: The Road Safety Act 1986 also now permits police to search a vehicle in the absence of a warrant in certain circumstances associated with hoon offences. However, more commonly, police search a person’s vehicle under the powers set in section 82 of the Drugs Poisons & Controlled Substances Act 1981.
- With a search warrant: A search warrant is a court-issued document that authorises the holder to search a nominated property or thing. A warrant can only be issued by a Magistrate or a Judge. This is to protect citizens from police abusing the powers associated with the issuing of warrants. A warrant to search a particular premises must specifically name the property. An error in the address will make a search of the property invalid. The warrant must also state the place or thing to be searched and what general offence has justified the search.
- Search for stolen goods: Section 92(2) of the Crimes Act 1958 allows high-ranking police officers to authorise property searches for stolen goods, with certain limitations. As this is not issued by a Magistrate, it is not technically a warrant, but it does blur the lines somewhat.
Police can enter private property if they have a lawful excuse or express or implied authority existing under statute or common law. For more on when a person, including a police officer, has a lawful excuse or authority to enter private property and when police become trespassers, see our trespass article.
Examples when police need a warrant to search your property
Warrant for drug offences
Drugs Poisons and Controlled Substances Act 1981 – Warrant to search premises – s 81
The police may apply to the court for a warrant that will permit them to enter and search any premises or land (including any vehicle on or in that land or those premises) or on or in a particular vehicle located in a public place and seize property.
The police must satisfy a Magistrate that there are reasonable grounds for believing that there is, or will be within the next 72 hours:
- any thing in respect of which an offence under this Act or the regulations has been or is reasonably suspected to have been committed or is being or is likely to be committed within the next 72 hours;
- any thing which there is reasonable ground to believe will afford evidence of the commission of an offence under this Act or the regulations; or
- any document directly or indirectly relating to or concerning a transaction which would be an offence under this Act or the regulations.
Warrant to search for stolen goods
Crimes Act 1958 – Search for stolen goods – s 92
The police may apply to the court for a warrant to search for and seize any stolen goods. A Magistrate must be satisfied by evidence on oath that there is reasonable cause to believe that a person has any stolen goods:
- In the custody or possession of the person; or
- On any premises (including any vehicle on or in those premises) of the person; or
- On or in a particular vehicle located in a public place.
Warrant for firearm offences
Firearms Act 1996 – Warrants to search premises – s 146
A police officer may apply to the court for a search warrant if they believe on reasonable grounds that an offence has or is about to be committed under the Firearms Act 1996.
If the warrant is granted by a Magistrate, the police officer may search and seize anything as evidence that is relevant to the offence.
Examples when the police do not need a warrant to search your property
When arresting a person (for a serious indictable offence or escaping from legal custody)
Crimes Act 1958 – Entry and search of premises – s 459A
A police officer may enter and search any place (where the police officer believes on reasonable grounds the person to be) for the purpose of arresting under section 458 or 459 or any other enactment, a person:
- who is believed on reasonable grounds to have committed in Victoria a serious indictable offence;
- who is believed on reasonable grounds to have committed an offence elsewhere which if committed in Victoria would be a serious indictable offence; or
- who is believed on reasonable grounds to be escaping from legal custody; or
- who is found committing a serious indictable offence.
In order to enter a place under this section, a police officer may, if it is necessary to do so, use reasonable force.
Search without warrant for drug offences
Drugs, Poisons and Controlled Substances Act 1981 – Search without warrant – s 82
For drug offences, the police may search and seize in certain circumstances (with as much assistance as necessary) without a warrant where a police officer has reasonable grounds to suspect that there is a drug of dependence in respect of which an offence that has been committed or is reasonably suspected of having been committed under a provision of part V.
Search without warrant for weapon offences
Control of Weapons Act 1990 – search without a warrant – s 10
The police may search a person or car if the police officer has reasonable grounds for suspecting that a person is carrying or has in his or her possession in a public place a weapon contrary to the Act.
Search without warrant of motor vehicle
Road Safety Act 1986 – Powers of Victoria Police – s84F
If a police officer believes on reasonable grounds that a motor vehicle has been used in the commission of a relevant offence the police may search for or gain access to a motor vehicle. In addition to this, the police may also seize, impound or immobilize the motor vehicle.
Search without warrant for domestic violence
Family Violence Protection Act 2008 – Entry and search of premises – s 157
A police officer may, without a warrant, enter and search any premises where the officer on reasonable grounds believes that:
- The person has assaulted or threatened to assault a family member; or
- The person is on premises in contravention of a family violence intervention order, recognised DVO or family violence safety notice; or
- The officer reasonably believes the person is refusing or failing, or has refused or failed to comply with a direction to which the person is subject under Division 1 of Part 3 of the Act; or
- The officer has express or implied consent of an occupier of the premises to do so.
Police have fairly broad powers in relation to searching property, but they are not unlimited. Whether the police have acted lawfully is something that can be looked at in consultation with your lawyer.
If you have had your property searched by police and would like further advice on getting your property back or you would just to understand the process more comprehensively then call one of our offices today and make an appointment for a consultation.
What to do if you are about to be arrested
If you are about to be arrested or are concerned you might be arrested and you have time, then you must read this article, ‘What do I do if I am arrested?’
If you are arrested, it is highly likely police are going to interview you. If you have an opportunity, you should read this article on participating in a police record of interview, what are my rights?
It is important to remember that the police cannot give you legal advice, and if they could, you would not want to take it as they are never there to help you in circumstances in which you are being interviewed. If it is established that the police have given you legal advice, this would be a basis to challenge anything that you have said to the police.
Please understand that prior to being asked to speak to the police about any alleged offending, you must be given the opportunity to speak to a criminal lawyer. That is your right, and it is one that you should exercise. If you have to participate in a record of interview, then you should call Dribbin & Brown Criminal Lawyers.
