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Search and seizure

Information about police powers to search and seize drugs.

Without warrant in public

In a public place, police need at least reasonable grounds for suspecting a drug of dependence exists before they can conduct searches without warrant.

This suspicion may arise in various ways. For example, the fact that a person appears substance affected and is answering questions evasively is normally enough.

See Commonwealth and Victorian Drug Offences.

In public places, once police have formed this suspicion they can proceed to search a person, vehicle or animal. Any drugs of dependence found can be seized.

See s. 82—Drugs, Poisons and Controlled Substances Act 1981 (Vic)(opens in a new window).

Note: A protective services officer who is on duty in a designated place may conduct a search with a warrant. They must hand over any drugs, drug related devices or instruments found to police as soon as is practical.

See s. 82A—Drugs, Poisons and Controlled Substances Act 1981 (Vic)(opens in a new window).

Without warrant on private property

On private property, powers to search without warrant come from the Crimes Act 1958 (Vic). Police have powers to enter, search and arrest when they have reasonable grounds to believe a ‘serious indictable offence’ is or has been committed. (A ‘serious indictable offence’ is one where the maximum penalty is a jail term of 5 years or more on first conviction, such as drug trafficking.)

See Which offences can be heard in the Magistrates' Court?

In addition, if police find a drugs offence being committed while they are on private property, they can arrest the person to prevent further commission of the offence.

See ss. 458, 459 and 459A—Crimes Act 1958 (Vic)(opens in a new window).

Searches with a warrant

Police can apply to the Magistrates’ Court for a warrant. Giving evidence on oath, they must satisfy the court there are reasonable grounds for believing there is anything in relation to a drugs offence present (or there will be within 72 hours).

Warrants allow for search and seizure in almost any place or time. They can be as wide or narrow in scope as the Magistrate determines.

Forfeiture

Even before conviction, police can apply for an order for the forfeiture and subsequent destruction of drugs and related items (for example, equipment used for cultivation). The court’s power is very broad. All that is required is:

  • for a substance: proof that it is or contains a drug of dependence
  • for other items: proof that the item has been or is capable of being used in the cultivation, manufacture, sale or use of a drug of dependence.

See s. 83—Drugs, Poisons and Controlled Substances Act 1981 (Vic)(opens in a new window).

More information

Legislation

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

  • s. 81—warrant to search premises
  • s. 82—search without warrant
  • s. 82A—powers to search by a protective services officer
  • s. 83—forfeiture of drug of dependence or substance before conviction

See Drugs, Poisons and Controlled Substances Act 1981 (Vic)(opens in a new window).

Crimes Act 1958 (Vic)

  • s. 458—persons found committing offences can be apprehended without warrant by anyone having reasonable grounds to believe the apprehension is necessary for certain reasons
  • s. 459—police and PSO powers to apprehend when having reasonable grounds to believe indictable offence has been committed
  • s. 459A—police power to enter and search places when having reasonable grounds to believe serious indictable offence has been committed or is in progress

See Crimes Act 1958 (Vic)(opens in a new window).

Reference

Commonwealth and Victorian Drug Offences

Please contact Helen Askew if you need this information presented in an accessible format.

Commonwealth and Victorian Drug Offences (pdf, 302 KB)(opens in a new window).

Paper presented by Mark Regan, barrister, at VLA Criminal Specialisation Project 2014 about drug offence in Victoria and the Commonwealth.

Updated