The Law of Search Warrants: Protecting Property and Privacy Rights

Criminal Law
5 minute read

Both legislation and the common law treats property and privacy rights as sacrosanct, and when such rights are imposed upon via a search warrant, there are a number of serious considerations that a justice must take into account before issuing a search warrant.

Search warrant and the law

All jurisdictions in Australia have laws enabling the issuing of a search warrant that sets out the formalities that need to be complied with. However, to get a more holistic view of the process, we can look to the common law for some of the guiding principles, in particular the comments of Lockhart J in Crowley v Murphy (1981) 52 FLR 123; 34 ALR 496 (FCA) (at 144, 515-516):

[T]he 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.

The seriousness in which the right to privacy is treated can also be seen in the various Human Rights Acts, such as s 12 of the Human Rights Act 2004 (ACT) which states that every person has the right:

  • not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
  • not to have their reputation unlawfully attacked.

The issuing justice must be satisfied and comply with the formalities when issuing a search warrant

The High Court in George v Rockett (1990) 170 CLR 104 in a joint judgment said (at 112):

[I]t must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist.

The Court further added (at 113):

It follows that the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind.

In addition to the issuing justice being satisfied, the procedural elements must be followed by an issuing justice and must also carry particulars that will assist an officer to decide what things are relevant or irrelevant, rather than carrying generalities as noted by Callinan and Crennan JJ in New South Wales v Corbett (2007) 230 CLR 606; 237 ALR 39; 172 A Crim R 55 (at 632; 61; 579 [104]):

The concern for the common law courts to avoid general warrants and to strictly confine any exception to the principle that a person’s home was inviolable is the original source of common, although, differently expressed, statutory requirements. Those requirements have as their purpose the proper identification of the object of a search by reference to a particular offence. This in turn limits the scope of the search authorised by the search warrant.

Can the police take evidence from another crime when a search warrant has been issued?

Up until the decision in Levine v O’Keefe [1930] VLR 70 (FC), Australia followed English authority which allowed police officers to take items that may demonstrate another crime had been committed. However, in Levine v O’Keefe the position changed in Australia when CIB detective, Jeremiah O’Keefe seized the property of Meyer Levine without a search warrant, citing that the property seized was evidence of a commission of a crime. Levine sued for damages for wrongful seizure and detention, while O’Keefe argued as a defence that his actions were proper and necessary. Cussen J struck the defence out. O’Keefe lost his appeal with Mann, McArthur and Lowe JJ, stating (at 72):

The authorities which have been laid before us show, we think, the law to be in this position – there are two ways in which the seizure of goods in circumstances like the present can be justified. One is by showing that they were seized being in the possession of a person at the time of his arrest either for felony or misdemeanour. The authority for that is the Irish case of Dillon v O’Brien [1887] 20 LR Ir 300, which has been cited. The other way in which such a seizure can be justified is under a search warrant lawfully issued.

In the present case the person in possession of the goods was not arrested. There was not even any charge against him at the time of the seizure of the goods. Nor was there any search warrant. The authorities therefore offer no support to the contention made here on behalf of the defendant, nor is that contention supported, so far as we have been able to find, by any dicta in cases on the subject.

For these reasons we think the appeal must be dismissed with costs.”

Can force be used when executing a search warrant?

Although legislation generally doesn’t expressly or by implication outline the use of force in relation to search and seizure, the comments of Franki J in Crowley v Murphy (1981) 52 FLR 123; 34 ALR 496 (FCA) may provide some guidance to the use of force (at 129; 502):

The section authorises entry “if necessary by force” but, although the use of force is mentioned specifically, the section must be strictly construed because it interferes with a previously existing common law right... As an illustration, if it is reasonable to gain access to a house when all the doors are locked, a warrant issued under the section would not appear ordinarily to justify blowing up a part of the house with an explosive or destroying a part of it with a bulldozer although it would usually justify the use of such force as is reasonably necessary to break open a door to gain access to the premises. Since the nature of the search is not dealt with by the words of the section but arises by implication. I am clearly of the opinion that the only search which could be made pursuant to the warrant in this case is a search which is reasonable in the circumstances.