What the police need to do if they want to obtain a search warrant

by The FindLaw Team

You really don’t need to have an intimate knowledge of the law to know that when the police are conducting a search on the premises of a person, a search warrant is required. However, many readers might be somewhat surprised that many formalities must be complied with both when the police are making a request for a search warrant, and the justice who decides to issue the warrant. Numerous considerations such as the correct formalities, legislation and even human rights law all play a role in the issuing of search warrants, and like many other aspects of law, the issuing of a search warrant has more complexity than one would imagine.


For the most part, legislative instruments do make an allowance for the issuing of search warrants when required, however, the majority of jurisdictions in Australia have specific laws dealing with the issuing of search warrants, and alternatively, legislation revolving around drug offences also have sections addressing how a search warrant is to be obtained.

Using a legislative example, we can look to s 465(1) of the Crimes Act of Victoria as our basis, regarding the issuing of search warrants:

“(1) Any magistrate who is satisfied by the evidence on oath or by affidavit of any member of the police force of or above the rank of senior sergeant that there is reasonable ground for believing that there is, or will be within the next 72 hours, in any building (including any vehicle in that building), receptacle or place (including any vehicle on or in that place) or on or in a particular vehicle located in a public place-

      (a)  anything upon or in respect of which any indictable offence has been or is suspected to have been committed or is being or is likely to be committed within the next 72 hours; or
      (b)  anything which there is reasonable ground to believe will afford evidence as to the commission of any such offence; or
      (c)  anything which there is reasonable ground to believe is intended to be used for the purpose of committing any indictable offence against the person for which the offender may be arrested without warrant-

may at any time issue a warrant authorizing some member of the police force or other person named therein to search such building receptacle, place or vehicle for any such thing and to seize and carry it before the Magistrates' Court to be dealt with according to law.”

What are some of the formal requirements in issuing a search warrant?

One of the interesting elements we should highlight in regards to s 465(1) in the Crimes Act of Victoria, is that the issuing justice must believe on reasonable grounds that a search warrant, is well, warranted.

The courts have recognised the sanctity of a person’s property and the decision to issue a search warrant should not be taken lightly, however, it also must be balanced with the relevance to the issue and in Crowley v Murphy, Lockhart J in the Federal Court said:

“This does not mean that the Justice must be satisfied that the things to be searched for will necessarily afford evidence sufficient to result in a conviction; but simply whether they will be relevant in some way to the issue, if found. He is not to decide the case at the time it is sought to issue the warrant; but the Justice must remember that he is exercising wide powers ex parte, and must take into account the rights of the citizen who is not before him in a proceeding that cuts across the ancient principle that a person's home is inviolable. It is a power to be exercised with great care and circumspection. The warrant is not to be lightly granted.”

Because a person’s property rights are sacrosanct, when a justice makes the decision to issue a search warrant they are expected to comply with the legal and procedural formalities or the warrant may be invalid, such as the case in R v Macleod, in which Slicer J of the Tasmanian Supreme Court stated, that the trial judge erred in applying the wrong test: which was to be satisfied with the material at hand that would give rise to reasonable grounds for suspicion. It’s not enough that the issuing justice is satisfied, that the person seeking a search warrant is satisfied.

The offence must be fairly stated in the warrant

The recurring theme of this article is the issuing of a warrant must be done on reasonable grounds because a person’s home and property should be free from intrusion. Because of the high regard in which a person’s property rights are held, a search warrant must contain sufficient particulars so an officer, as well as a citizen, is able to consider whether particular things have relevance. In Beneficial Finance v Commissioner of Australian Federal Police, Burchett J in the Federal Court of Australia said:

“The purpose of the statement of the offence in the warrant is not to define the issues for trial; but to set bounds to the area of search which the execution of the warrant will involve, as part of an investigation into a suspected crime. The appropriate contrast is not with the sort of error which might vitiate an indictment, but with the failure to focus the statutory suspicion and belief upon any particular crime, with the result that a condition of the issue of warrant is not fulfilled, and it purports to be a general warrant of the kind the law decisively rejected in the 18th century. There should be no going back on that rejection, which is an essential bulwark of respect for the integrity and liberties of the individual in a free society, but what the rule requires is identification (and so limitation) of an area of search by reference to a suspected offence, not the formulation of a pleading before the offence is capable of prosecution.”

What if police find something relating to another crime when executing a warrant?

In R v Applebee, Higgins J stated, that when the police are conducting a search it must be confined, “…in kind and scope to that which is necessary to find the “things” for which the search is authorised.” His Honour came to the conclusion that the search and seizure beyond finding the necessary and authorised “things”, was not lawful in that particular instance.


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