Contributed by AndrewRobson and current to 27 July 2018

Searching a person

Police also have the power to conduct any search if the person concerned agrees to it.

Once an arrest has been made, police can search the arrested person and any property he or she has in their possession.

Powers to search without arrest exist under the Misuse of Drugs Act 1981 (WA), the Prostitution Act 2000 (WA), the Weapons Act 1999 (WA), the Protective Custody Act 2000 (WA) and the Criminal Property Confiscation Act 2000 (WA).

Under the Prostitution Act, the police can stop, detain and search anyone they suspect on reasonable grounds of committing an offence, or who might have evidence of an offence (s.25).

Under s8 of the Protective Custody Act, police and community officers can detain and search people who are intoxicated in public if this is necessary to protect them or others, or to prevent damage to property.

A search must be done by a person of the same sex.

Where the police have reasonable grounds to suspect that a person has something connected to an offence under the Misuse of Drugs Act or is in possession of any evidence relevant to such an offence, the police may stop, detain and search that person.

Someone of the same sex, or a medical practitioner, must carry out a search (s23(1) and (2) Misuse of Drugs Act 1981 (WA)).

A police officer may search a person in lawful custody on a charge of committing any offence, to take from him or her anything found upon his or her person, and to use such force as is reasonably necessary for those purposes (ss 135 & 16(1) Criminal Investigation Act 2006 (WA ).

A basic search allows police to use a scanner on your body; remove and search any hat, gloves, shoes or outer clothes you are wearing; do a frisk search by running their hands over the outside of your clothes; and photograph or video all or parts of the search.

Where possible, a basic search should be done by a person who is the same sex as you, unless the searcher is a doctor or nurse. Before conducting a basic search, the person searching must, if possible identify themselves; tell you the reason for the search; ask you whether you agree to the search; advise you that the search will be carried out even if you do not agree; and advise you that it is an offence to try to stop the search being done.

A strip search allows police to remove your clothing (but not more clothing than is reasonably necessary); search your clothes or anything else you are wearing; search outside of your body, and search the inside of your mouth.

If the strip search requires the removal of your clothing or a search of your private parts, it must be conducted by a person of the same sex, unless the searcher is a doctor or nurse. The number of people present during the search must not exceed the number that is reasonably necessary to ensure the search is carried out effectively.

This type of search must be conducted in a private place, and police have the power to require you to go to a place suitable for the search.

Police may photograph or video anything they find during the search, in the location where they find it.

Customs officers may search any ship, boat or aircraft or, with a warrant, may search and seize anything from anywhere.

A person can be detained and searched if a customs officer has reasonable cause to suspect that the person detained is unlawfully in possession of any contraband or prohibited imports or exports. The person detained can object to being searched, in which case, the reasonable cause must first be explained to the satisfaction of a Justice (for an external search), or a Judge (for an internal search) (s219R, s219V Customs Act 1901 (Cth)).

Under s11 of the Terrorism (Extraordinary Powers) Act 2005 (WA) if an officer reasonably suspects that a person is a target person; is about to enter, is in, or has recently left, a target area; is in the company of a target person in suspicious circumstances; or is in a target vehicle, the officer may do a basic search or a strip search on the person for the purposes of looking for a thing connected with a terrorist act.

A strip search should only be conducted if the person is a target person, the strip search is necessary, and the seriousness and urgency of the situation require a strip search to be done.

Searching a car

The police can stop, search and detain any vehicle if they reasonably believe or suspect that the vehicle may contain stolen goods; evidence regarding a drug offence; evidence in connection with a prostitution offence; evidence concerning criminal assets; a weapon; or a target person; is a target vehicle; or is about to enter, is in, or has recently left a target area in terrorist-related offences.

Searching a place

The police can search a person’s place if they have a search warrant or if the owner agrees to the search.

A place includes any land, building, structure, tent, mobile home, home, backyard, garage, sheds and business offices.

The police can ask for a search warrant from a Justice of the Peace (s41 Criminal Investigation Act 2006 (WA).

Warrants granting the police powers to search must define with reasonable particularity the premises to be searched; the things to be seized, and the suspected offence to which it relates.

If you have a query about the validity of a search you should ask the police officer what authority

they have to conduct a search, make it clear to the officer that you do not consent to the search, be polite and do not resist the officer, but then obtain legal advice.

The police can enter a place without a warrant in certain circumstances including where there is reasonable suspicion concerning the need to prevent violence or a breach of the peace (s.35 Criminal Investigation Act 2006 (WA); to attend to a dead or seriously ill or injured person (s.36); to investigate a serious event such as a fire or explosion (s.37); to prevent or disperse an out of control gathering which is authorised by a senior officer (s.38B), or to establish a protected forensic area for a serious offence (s.40).

Under the Prostitution Act, the police can, without a warrant, enter businesses suspected of carrying on prostitution activities, search anyone found there and seize anything they suspect will provide evidence of an offence (s26).

Under the Misuse of Drugs Act, a Justice of the Peace may issue a warrant authorizing a police officer, within 30 days of issue of the warrant, to enter any vehicle, vessel or premises named on the warrant and to search them. A person can also be searched under the warrant, but it must be by a person of the same sex or a medical practitioner. If either of these people is not available, the person to be searched may be detained, but not for any longer than is reasonably necessary.

Under the Misuse of Drugs Act, a police officer or approved person may, without a warrant, enter the premises of a person who is a manufacturer, seller, supplier or cultivator of drugs of prohibited plants. Further, any documents relating to the dealings may be demanded and inspected.

Under the Terrorism (Extraordinary Powers) Act, if a police officer reasonably suspects that a place is a target area, the officer may enter and search the place for a thing connected with a terrorist act. If a police officer reasonably suspects that a target person or target vehicle is in a place, the officer may enter and search that place. The officer may use any force against any person or thing that is reasonably necessary in the circumstances to exercise the power.

If a person is present at the premises when police enter, police must identify themselves; explain that they intend to enter the place; give the person a copy of the warrant if they have one; explain the authority they are relying upon if there is no warrant; and give the person an opportunity to provide consent if they wish to do so.

The police are not required to do the above if doing so would endanger or jeopardize the purpose of the entry.

Further, if a person is not present at the premise, police must leave a notice stating the officer’s details and the fact that the place has been entered, or leave a copy of the search warrant or other authority for entry.

Public Transport

Transit officers can search you if they reasonably believe that you have a restricted item on public transport, these items include explosives; syringes, other than a syringe for medical purposes; firearms; controlled or prohibited weapons; or tools, devices, substances or apparatus that is capable of being used to create graffiti or mark property.

A transit officer of the same sex must perform the search and they can detain you for as long as reasonably necessary until someone of the same sex is available.

Unlike police, transit officers can only perform a pat-down search, if they require a more thorough search you will be taken to a police station.

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