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Searching for drugs

Information about powers to search for drugs and poisons.

Police have power under the Drugs, Poisons and controlled Substances Act 1981 to search for prohibited drugs or associated items including documents that are reasonably believed to be associated with an offence under that Act.

Searches in relation to importation and export of drugs are usually dealt with under Commonwealth law.

See Commonwealth search powers.

Without a warrant

Police also have powers to search a:

  • person
  • animal
  • boat, aircraft or vehicle without a warrant

in a public place if they have a reasonable belief that an offence has been committed concerning a drug of dependence.

See s. 82—Drugs, Poisons and Controlled Substances Act 1981 (Vic) (link below)

Volatile substance

Police are also able to search for volatile substance without a warrant in public (or in private premises with permission).

See Youth—Volatile substances.

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) (link below)

Under Warrant

Any member of police who has reasonable grounds for belief that within the next 72 hours there is anything that can be used as evidence for an offence under under Drugs, Poisons and Controlled Substances Act 1981 may apply to a Magistrate for a warrant to search any land or premises.

Police must convince the Magistrate, under oath, of the grounds for their belief. Magistrate, once convinced, may issue a warrant that authorises any police officer to conduct a search of those premises.

A magistrate may grant a search warrant if satisfied by evidence from a senior police officer that reasonable grounds exist to suspect that there is, or will be within next 72 hours:

  • any associated thing or
  • document
  • anything else reasonably likely to provide evidence
  • about an offence under the Drugs, Poisons and Controlled Substances Act 1981.

The warrant may include a direction that anything found that is tainted property (and a Schedule 1 offence) is seized by police and retained for as long as it is required as evidence.

See s. 81—Drugs, Poisons and Controlled Substances Act 1981 (Vic) (link below)

For more details about drug searches see Searching for drugs.

What warrant authorises

Police named in the warrant may:

  • enter search any person, land, premises, vehicle, aircraft, boat or and
  • seize any thing, or document that is reasonably likely to provide evidence about an offence under this Act.

Time limit

Warrant must be executed within 1 month of date of warrant.

See s. 81—Drugs, Poisons and Controlled Substances Act 1981 (Vic) (link below)

Seizure of Property

If Magistrate believes that tainted property may be found during the search they may direct the warrant applicant to seize and hold that property according to requirements under Confiscation Act 1997 (Vic).

Tainted property is defined as any property:

  • that was used
  • intended to be used or
  • connected with the offence or
  • anything derived, realised, (even indirectly) from property or by any person connected to that offence.

What offences are included?

Offences that can stimulate a search warrant to be issued in relation to drugs include:

  • use
  • traffick
  • posses
  • cultivate
  • forge prescription for,
  • introduce drug to another person.

Drugs of dependence are listed in Schedule 11 of the Act.

See Seizure and return of property—Treatment of drugs after seizure.

More information

Legislation

Drugs, Poisons and Controlled Substances Act 1981 (Vic)

  • s. 4—defines drug of dependence
  • Pt. 4—deleterious substances and search, seizure and detention powers relating to volatile substances
  • Pt. 6—search, seizure and forfeiture
  • s. 81—warrant to search premises
  • s. 82—search without warrant
  • Schedule 10—prescribed content for search warrants
  • Schedule 11—list of prohibited drugs that if believed to be present and associated with, will enable police to conduct a search without a warrant

See Drugs, Poisons and Controlled Substances Act 1981 (Vic).

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).

Confiscation Act 1997 (Vic)

  • s. 3—defines tainted property

See Confiscation Act 1997 (Vic).

References

The Law Handbook

Fitzroy Legal Service's Law Handbook has information about drug offences.

See Drug offences.

Updated