The police can only search you or your property if:
- you agree
- they have a warrant
- they have arrested you
- you are in a public space that has been declared a ‘designated area’
- they are otherwise allowed to by law.
It is important to ask the police why they wish to search you before any search begins. Police must tell you why they intend to search you.
It is your right to say no to a police search if they do not have the legal right to search you or your property.
Being searched without a warrant
Police officers may ask you to consent to a search if they don’t have a warrant or the authority to do so (see When the law says police can search you without a warrant).
The police cannot force you to consent to a search. You have the right to say no.
It is necessary for the police officer to obtain your written agreement if you say yes; otherwise, you may make a complaint.
If the law permits, the police may search you without a warrant
The police officer does not need a warrant to search you in a public place if they reasonably suspect you:
- have illegal drugs
- have things that can explode or ignite
- have guns or weapons like knives, imitation guns, knuckle-dusters or nunchakus
- are in an area where a lot of violent crime happens (they can use this fact to show they have reasonable grounds to search you)
- have something that could be used to make graffiti, for example, spray paint, gouging tool or even a texta.
In order for a police officer to search you for graffiti, the officer must reasonably believe that you are at least 14 years old, and you must be on or near public transport property, or trespassing on someone else’s property.
A public place includes
– a shop
- a train station
- public transport (buses, trams or trains)
- a hospital or welfare centre like the Salvation Army.
You can be searched by the police officer for anything you are carrying or in your vehicle. The police officer can search your vehicle even if you are not in it.
Searches in public ‘designated areas’
Public areas, such as designated areas, are areas where the police have the authority to search for weapons. The police have the following powers within designated areas:
- do not need a warrant
- do not need to have any reasonable grounds to suspect you are carrying a weapon
- can search you, your bags and your car for weapons
- can do searches in a designated area for up to 12 hours.
It is possible for a senior police officer to designate a public area if the following conditions are met:
- has had two or more events of violence or disorder in the last 12 months
- is a regular trouble spot, such as King Street, Melbourne
- has had events or demonstrations that have been violent.
When a public area becomes a designated area at short notice, the police should inform people of this change and publish it in a local newspaper.
The police officer must give someone a search notice before searching them in a designated area. The notice will include the following information:
- that the area has become a designated area
- you or your motor vehicle are in that designated area
- the police have the power to search you
- it is an offence to stop the police searching you.
Searches on private property
Usually, police officers require a warrant before entering and searching private property, such as your home. However, the officer may not require a warrant when:
- you let them in
- In order to arrest someone, the police officer must have a reasonable belief that he or she will commit a serious crime or has committed one.
- the police officer needs to stop a ‘breach of the peace’, for example, a fight
- A person inside the property has violated an intervention order or a family violence safety notice
- There has been a failure by someone to follow a direction given by the police regarding family violence
- It is reasonable to believe that an assault or threat of assault has taken place against a member of the family by a police officer
- An officer is pursuing a person who has escaped prison or custody
- An arrest warrant has been issued for a person on the property by the police officer.
What happens when you are searched
An officer uses their hands to feel over the outside of your clothing.
- In public or on private property, we may search you
- ask you to empty your pockets or remove your jacket or jumper
- If you refuse to comply, the police can charge you and fine you.
- use a metal detector to look for something they reasonably suspect is a weapon.
The police officer that does the search must:
- The person should have the same gender as you (unless this is not feasible).
- make a written record of the search
- give you a receipt when they take anything away from you, including drugs.
The strip search is when the police officer removes all of your clothing and searches it. An officer may conduct a strip search if they are searching for something that cannot be found in a pat-down search.
A strip search can only be conducted by a police officer in a private area, usually at a police station. The strip search must follow the same guidelines as a pat-down search.
Additionally, a police officer must ensure that you are accompanied by someone if:
- You must have a parent, guardian or independent person with you if you are under the age of 18
- There must be an independent third person present if you have a cognitive disability or a mental illness.
They do not have to do this if there are urgent or serious circumstances that mean they cannot get one of these people to be with you.
A police officer may use another person to watch a search in a designated area where a parent, guardian or independent person is not ‘practicable’ for police to have. This person could be another police officer. The law does not specify the meaning of ‘practicable’. It could indicate that the officer does not believe a parent, guardian or independent individual would be able to reach the location within a reasonable amount of time.
Internal body search
An internal body search is a forensic procedure that involves searching inside your body.
As long as you agree to it, only a doctor will be able to conduct the search. The doctor must be your own gender.
There is no requirement that you consent to an internal body search. If you refuse, the police must obtain a court order to conduct the search.
Obtain legal advice if you are not satisfied with the results of the search.
What to do if you are searched by the police
Before the search begins
The police officer must explain to you why they are searching you, regardless of whether they have a warrant or authority to do so.
While the search happens
It is essential that you remain calm. Searches may be fast and confusing. If the officer has the right to search you, you should let them do it. You may be charged with hindering police if you attempt to prevent the search.
If the police officer hurts you
During a search, a police officer may not use excessive force. For example, a police officer should not use rough language if you are cooperating with the search. You may complain if the police officer uses excessive force.
If you believe that the police officer was too rough.
Whenever a police officer searches you, he or she must make a written record of the search. If you ask for a copy of this record within one year of the search, it is free.