Getting searched

Being searched without a warrant

If the police officer does not have a warrant or the authority to search you (see When the law says police can search you without a warrant), they might ask you if you will let them search you. This is called ‘search by consent’.

You can say no. They cannot force you to consent to a search.

If you say yes, the police officer should get your agreement in writing. You can make a complaint if this does not happen.

When the law says police can 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.

To search you for a graffiti offence the police officer must reasonably believe you are 14 years or older. You must also 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)
• school
• a hospital or welfare centre like the Salvation Army.

The police officer can search anything you are carrying and the car you are in. They can search your car even if you are not in it.

Searches in public 'designated areas'

The police can search people for weapons in public areas which have become designated areas. They have a lot of search powers within these areas. The police:

• 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.

A senior police officer can make a public area into a designated area if it:

• 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.

The police should tell people that the public area has become a designated area. They should publish this in a local newspaper. They do not have to do this if they have made a public area into a designated area at short notice.

Before searching anyone in a designated area, the police officer must give the person a search notice. This will say:

• 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

A police officer usually needs a warrant to enter and search private property, such as your home. The officer may do a search without a warrant when:

• you let them in
• the police officer has a reasonable belief that someone will or has committed a serious offence and they need to go into the property to arrest that person
• the police officer needs to stop a ‘breach of the peace’, for example, a fight
• someone inside the property has breached an intervention order or a family violence safety notice
• someone has not followed a direction given by the police for family violence matters
• the police officer has a reasonable belief that someone has assaulted or threatened to assault a family member
• the police officer is chasing someone who has escaped from prison or custody
• the police officer has a warrant to arrest someone on the property.

What happens when you are searched

Pat-down search

This is when the police officer uses their hands to feel over the outside of your clothes. The police officer can:

• search you in public or inside a private property
• ask you to empty your pockets or remove your jacket or jumper
• ask you to show them something they believe is a weapon. The police can charge you and fine you if you refuse
• use a metal detector to look for something they reasonably suspect is a weapon.

The police officer that does the search must:

• be the same gender as you (unless this is not reasonably possible)
• make a written record of the search
• give you a receipt when they take anything away from you, including drugs.

Strip search

This is when the police officer removes and searches all of your clothing. An officer will usually do a strip search when they are looking for something they could not find in a pat-down search.

A police officer can only do a strip search in a private place, usually at a police station. They must follow the rules for a pat-down search.

A police officer must also make sure you have someone with you if:

• you are under 18 – a parent, guardian or independent person must be with you
• you have a cognitive disability or a mental illness – an independent third person must be with you.

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.

If the search is in a designated area and it is not ‘practicable’ for police to have a parent, guardian or independent person, police may use another person to watch the search. That other person could be another police officer. The law does not say what ‘practicable’ means. It could mean the police officer believes it would take too long for the parent, guardian or independent person to get there.

Internal body search

This means searching inside your body. An internal body search is a forensic procedure.

If you agree to it, only a doctor can do the search. The doctor must be the same gender as you.

You do not have to agree to an internal body search. The police must get a court order to do the search if you refuse.

Get legal advice as soon as possible if you are not happy with how the search was done.

What to do if you are searched

Before the search begins

Ask the police officer why they want to search you. Do this even if the police officer has a warrant or the authority to search you. The police officer must tell you why they want to search you.

While the search happens

Stay calm. Searches can be fast and confusing. If the police officer has the right to search you, you must let them do their job. The police can charge you with hindering police if the officer is allowed to search you and you try to stop it happening.

If the police officer hurts you

The police officer can only use reasonable force when they search you. For example, the police officer should not be rough with you if you are going along with the search. You can make a complaint if you feel that the police officer was too rough.

Records

If a police officer searches you, they must make a written record that they did the search. You can ask for a copy of the record at the time or later. It is free if you ask for the record within one year of the search.

Other support

Find out how you can get other support for your rights when it comes to police powers.