As a NSW Police Officer (Team Leader, Manager and Coordinator) I gained extensive operational experience in the preparation, planning and execution of search warrants. 

In turn my operational experience led me to be an educator and advisor relative to best practice in Search Warrants [application and execution].

This article on search warrants will be divided into two parts. Part 1 covers the following topics:

• What is a Search Warrant?

• Legislation in Other Jurisdictions

• Police Activities that Go with Executing a Search Warrant

• The Long-Standing View by the Courts

• Reasonable Belief and Grounds

• Two High Profile Examples that Changed the Way NSW Police were Required to Conduct All Subsequent Search Warrants

WHAT IS A SEARCH WARRANT?

It is a legal document generally issued by a court of law following application by investigating police to search particular premises for particular evidence.  The search warrant provides police with the power to enter premises (by force if necessary) and to search and seize 'things' mentioned in the search warrant.  However, police will only have a certain time frame to execute the warrant (in NSW within 72 hours of the warrant being issued).

Examples of the 'thing' that police are allowed to search for are stolen or unlawfully obtained property, firearm matters, illicit drugs, clothing of robbery suspect (captured on CCTV), child pornography maintained on a computer - the list goes on.....they are 'things' that are connected with an indictable crime.  Fundamentally, an indictable crime simply translates to a crime which may be punishable by penal servitude.

 Definition of a "thing" (New South Wales legislation):

 A "thing" is connected with a particular offence if it is:

• a thing with respect to which the offence has been committed;

• a thing that will afford evidence of the commission of the offence; or

• a thing that was used, or is intended to be used, for the purpose of committing the Offence.

LEGISLATION IN OTHER JURISDICTIONS

Queensland has similar legislation and once issued the warrant should be executed within 72 hours however it can be up to 7 days in certain cases.  Tasmania is also similar to NSW but the time frame to execute is up to 28 days.  Likewise Victoria is fundamentally aligned to the NSW procedures however depending on the specific crime only Victorian Police of certain rank can make application. 

The Commonwealth Crimes Act 1914 dictates law for search warrants which are applicable to the Australian Federal Police including the territories of ACT & Northern Territory.  Once again this Commonwealth Law is principally similar to the overall NSW requirements.  Western Australia has 30 days to execute the warrant once issued; once again similar legislation to most other states/territories. 

In South Australia their Commissioner of Police can issue a search warrant, the warrant can be in force for 6 months pending execution.  My research into the SA legislation revealed (perhaps I missed it) very little legislation for controlling the way search warrants are conducted, compared to all other states/territories.

WHAT POLICE ACTIVITIES GO WITH EXECUTING A SEARCH WARRANT?

If you look at any current television police drama you are led to believe not much effort is involved in obtaining a search warrant then entering a house and seizing evidence (yes, I know they have less than a 1 hour time slot to find and arrest the villain). 

However, quite the opposite occurs in real life such as: 

• surveillance and/or reconnaissance of the target premises,

• gathering and collating documents which will afford value when applying for the search warrant,

• preparing an application to obtain the search warrant,

• attending court to apply for the warrant,  planning logistics and human resources for the warrant execution,

• preparing Operational Orders (Orders and other records must reflect that a risk/threat analysis has been conducted on the Premises, Occupants and where necessary any Associates).

Executing the search warrant includes safe entry into and securing the premises, securing occupants, attending to required legal matters with the occupant prior to searching, management of the search & seizure, prisoner security, family/other person security, front door security, equipment officer, video operator/still camera, designated search officers, exhibit officer, exhibit security officer.  At search completion, making sure an organised retreat takes place from the premises at conclusion of the warrant (all equipment and police are accounted for). 

But it does not finish there. All seized 'things' must be taken to a police station and officially recorded/photographed and entered into an official Police Exhibit Book.  The seized 'things' are cross checked by the Station Police who accept custody of the things as exhibits.  Later the investigating police may have to move some exhibits for scientific examination (such as illicit drugs for analysis, firearms to the ballistic section, items requiring DNA testing, a letter for handwriting analysis) plus importantly informing the issuing Justice of the search results (by report) within 10 days of execution.

However it is not an easy road to travel.  All good investigators hope their matter ends up in court with the accused being tried (and convicted) for whatever crime.  It is here, in the court, that your processes of approach to the investigation will come under defence lawyer scrutiny.  Case Law concerning search warrants is well recorded in both the Supreme and High Court.

LONG STANDING VIEW  BY COURTS

Protection from arbitrary search and seizure by the State has long been seen as characteristic of a free society.  The Earl of Chatham, in a speech around March 1763 said: 

"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter - all his forces dare not cross the threshold of the ruined tenement".

So common law attaches great significance to the privacy of premises and papers.   Accordingly, the terms of legislation, which seek to disturb the common law position, are scrutinised very carefully.  The Courts have shown a propensity to 'read them down' where it is practicable and proper so to do.  In other words, the courts have tendency to interpret in favour of protecting the personal freedoms of the individual as opposed to the spread of a 'Police State'.

Justice Lee in his report into the Blackburn [New South Wales] Inquiry said: 

'It should be borne in mind by police officers that the mere issue by an authorised Justice of a warrant under the Search Warrants Act (1985) does not afford protection against claims for damages for trespass or recovery of goods, if it turns out later that the warrant was wrongly issued. 

A warrant in proper form and issued on proper grounds affords protection to a police officer against what would otherwise be unlawful conduct on his part and it is thus of the utmost importance that the application be prepared, not in any perfunctory fashion, but carefully and accurately.'

In providing judgement in the matter of Patten versus Justice of the Peace Redfern Court (1986) Justice Foster of the NSW Supreme Court said:

'The Justice cannot simply rubber-stamp the belief of the police officer seeking the issue of the warrant. He must form his own independent view and in doing so he must act judicially.  As such he must assess the material placed before him and test it before finally accepting it.  He should not accept merely bald assertions of fact which could well be inadequately based'.

Therefore the applicant police officer is to articulate in the written application for the search warrant proving a reasonable belief is held that the 'thing' being sought is connected with an 'indictable offence' and the 'thing' is or will be upon the 'premises' for which the search warrant is being applied.   The information contained within the application must be able to withstand strict scrutiny (through verbal interrogation by the Justice).

REASONABLE BELIEF AND GROUNDS 

Two important terms are reasonable grounds and belief.

In George v Rockett (1990), the High Court said;

"The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: The assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind as towards assenting to, rather than rejecting, a proposition and the grounds of which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture".

The law treats belief as a higher standard than suspicion.  Belief also contains an acceptance of the truth of the thing.  With a suspicion you may have no particular view either way whether in fact a thing exists, but merely a positive apprehension that the thing exists. Whereas a belief requires that you're positive apprehension must be coupled with a conviction as to the truth of the fact.

Therefore, as required under section 6 of the New South Wales Search Warrant Act, it requires not only the police officer who must believe that there are reasonable grounds for believing, but also requires that the Justice accepts that there are in fact reasonable ground for believing.

THE NEW SOUTH WALES PERSPECTIVE - TWO HIGH PROFILE EXAMPLES

Over the years police have executed search warrants within New South Wales in connection with and in search of things connected with criminal acts.  A large percentage of these search warrants are executed without incident.  However, if the warrant takes divergence from what we consider the norm; then the police involved in the planning, execution and those on the administrative edges will most likely find themselves before some inquiry, judicial or otherwise.

Here are two high profile examples that eventually changed the way NSW Police were required to conduct all subsequent search warrants:

GUNDAY SHOOTING

In 1989 Constable 1st Class McQueen along with Constable Jason Donnelley (Sydney District Anti Theft) were shot with a handgun by a male they suspected as a car thief.   Allan McQueen died from his wounds. 

The then Criminal Investigation Branch (CIB) caused the Special Weapons & Operational Section (SWOS) to execute a series of simultaneous search warrants early one morning looking for the man who shot Allan McQueen.  During a raid upon one house in Marrickville a male occupant was shot dead by SWOS. 

BRENNAN SHOOTING

June 1990 at Glebe a suspected car thief was identified as being wanted and hiding out in residential premises.  The Tactical Response Group was called and a subsequent raid, under search warrant, on the premises resulted in a male suspect being shot and seriously wounded by police.

This is the end of Part 1 of Search Warrants. Part 2 will cover the following:
 

The Inquisitor (Critical Review of a Search Warrant)
Service of the Occupier's Notice
Hours of Execution
Announcing Presence before Entry
The Informant
Police Characters
False or Misleading Information
My Final Say

- Graham Maranda