Understanding your rights during a police search is critical to ensuring lawful and fair treatment. Police in Victoria, Australia, are bound by specific legal frameworks that dictate when and how they can conduct searches. This guide provides an in-depth look into these powers, your rights and what to do if you are searched.

Situations When Police Can Search You

Police can only search you and your property under the following conditions:

1. With Your Permission: If you agree to the search.
2. By Court Order: When a search warrant has been issued.
3. Following an Arrest: If you are lawfully detained.
4. In Designated Zones: If you are in a declared “designated area.”
5. Under Legal Provision: When specific laws permit searches without a warrant.

Always ask the police why they want to search you and ensure they provide a valid reason. If they lack legal authority, you can refuse the search.

 Exceptions: Searches Without a Warrant

Police officers can conduct a search without a warrant in certain circumstances. These include situations where they suspect you:

• Possess prohibited substances or drugs.
• Carry hazardous or explosive materials.
• Have weapons, such as firearms or knives.
• Are in a high-risk area prone to violent incidents.
• Carry tools for graffiti vandalism near public or private property.

Areas Considered Public Spaces:

Public places where warrantless searches may occur include:

• Retail stores and shopping areas.
• Train stations and public transport vehicles.
• Educational institutions and hospitals.
• Community service centers.

Special Search Powers in Public and Private Areas

• Search Powers in “Declared Zones”

A “declared zone” is a public location where police are granted enhanced search powers. Within these zones, police can:

• Perform searches without needing a warrant or reasonable suspicion.
• Inspect individuals, their belongings, and vehicles.
• Conduct searches for a maximum of 12 hours.

A senior officer may classify an area as a “declared zone” if it:

• Has experienced repeated violent events.
• Includes known hotspots for public disturbances, like Melbourne’s King Street.
• Hosts events or protests with potential safety risks.

While public notification of declared zones is standard practice, urgent cases may bypass this requirement.

• Search Powers for Private Residences

While police require a warrant to search private property, they can enter without one under specific conditions, such as:

• Receiving explicit consent from the property owner.
• Preventing an imminent or ongoing serious offense.
• Intervening in disturbances like physical altercations.
• Enforcing family violence protection orders.
• Pursuing escapees from lawful custody.
• Holding an arrest warrant for someone on the premises.

These exceptions allow police to act swiftly in emergencies or high-risk situations while balancing individual privacy rights.

Types of Searches

• Pat-Down Search

A pat-down search is the most basic form of physical search conducted by the police. It involves:

• The officer uses their hands to feel over the layers of your clothing.
• Requests to empty your pocket or remove outer garments, such as jackets or coats.
• The use of a metal detector to locate prohibited items, such as weapons.

Important Notes:

• The officer conducting the search should be of the same gender as you, where practicable.
• A written record of the search must be made, and you should receive a receipt for any items taken.
• Pat-down searches can be performed in public or private locations, depending on the situation.

• Strip Search

A strip search is a more invasive form of search that involves the removal of some or all clothing to locate items not found during a pat-down. Strip searches are conducted in private settings, such as a police station, and involve the following steps:

• Requesting the individual to remove specific layers of clothing, as necessary.
• Conducting a visual examination of exposed areas to identify concealed items.

Important Notes:

• Strip searches must be conducted by an officer of the same gender.
• For individuals under 18, a parent, guardian, or independent observer must be present (unless urgent circumstances make this impractical).
• If you have a cognitive disability or mental illness, an independent third party must oversee the search.
• Police are required to explain the reasons for the strip search and ensure privacy and dignity are maintained.

• Internal Search

An internal search is the most intrusive type of search, involving the inspection of areas inside your body. This type of search is classified as a forensic procedure and can only be conducted under strict conditions:

• It must be performed by a qualified medical professional of the same gender.
• Police must obtain your consent or, if you refuse, a court order.
• The procedure must be carried out in a professional and hygienic manner, respecting your privacy and dignity.

Important Notes:

• You have the right to refuse consent, in which case police must seek judicial approval.
• If you feel the search was conducted unlawfully or improperly, seek legal advice immediately.

Steps to Take If You Are Searched

1. Before the Search
2. Ask the officer to explain the reason and legal basis for the search.
3. Request to see a warrant if applicable.

• During the Search
• Remain calm and cooperative if the search is lawful.
• Take note of the officer’s name, rank, and badge number.

• If Excessive Force is Used
• Police can only use reasonable force. If you believe excessive force was applied, document the incident and consider filing a formal complaint. Access Victoria Legal Aid: Complaints about Police for more information.

• Search Documentation
• Officers must record all searches. You can request a copy of the record free of charge within one year.

Key Legislation

1. Charter of Human Rights and Responsibilities Act 2006: Protects human rights in police interactions.
2. Control of Weapons Act 1990: Regulates weapon-related searches.
3. Criminal Procedure Act 2009: Covers police procedures for searches.
4. Family Violence Protection Act 2008: Guides police in family violence cases.

Resources and Support

1. Victoria Legal Aid: Provides free legal advice and assistance for Victorians, including information about police complaints.
2. Independent Broad-based Anti-Corruption Commission (IBAC): Investigates corruption and police misconduct in Victoria.
3. Fitzroy Legal Service: Offers community-based legal advice and support.
4. Law Institute of Victoria: Represents Victorian lawyers and provides legal resources for the public.

Conclusion

Knowing your rights regarding police searches empowers you to handle such situations confidently and ensures your treatment aligns with the law. If you feel your rights have been violated or have concerns about a search, seek legal advice. An informed understanding of the law is your strongest protection.