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Where there has been no arrest—stop and search

No arrest—no warrant

There is no general power to search without a warrant. Under common law and the Crimes Act 1958, police have no power to search a person without a warrant unless that person is under arrest. Police must make sure they are not exceeding their powers in this area.

If police stop and frisk person without authority to do so under a particular Act, the search may be an illegal one that could constitute a trespass. Anything found during an illegal search may be ruled inadmissible in court.

Specific powers to conduct personal search without a warrant

Some laws in Victoria allow personal searches to be carried out where police are searching for:

  • specific items—such as drugs or weapons or
  • where search is being carried out in particular places—such as:
    • where person wants to enter a court or
    • visit prison
    • board an aircraft
    • an area that has been designated under the Control of weapons Act 1990 (see link below)
    • a place where there is lots of graffiti and police suspect that a person may be involved, or
  • for particular classes of persons—such as:
    • person who is subject to an intervention order
    • person serving or who has recently served prison terms for some prescribed offences (such as handling stolen goods).

Generally these Acts require that police have reasonable grounds to believe that person is suspected of an offence against a particular act.

Common Victorian Acts that allow personal search without warrant

Police can search person without a warrant under the following Victorian Acts:

  • Control of Weapons Act 1990
  • Drugs, Poisons and Controlled substances Act 1981
  • Firearms Act 1996
  • Fisheries Act 1995
  • Graffiti Prevention Act 2007
  • Food Act 1983
  • Corrections Act 1986
  • Court Security Act 1980
  • Gambling Regulation Act 2003

See links below.

Warrant—no arrest

Search for prohibited weapons

A magistrate may grant a search warrant if satisfied by evidence from a senior police officer that reasonable grounds exist to suspect that a person:

  • is carrying, possesses or has used
  • has brought (or has organised to be brought) into Victoria
  • has manufactured, bought, displayed, sold or advertised to sell, or
  • a prohibited weapon (without an exemption or approval).

See s. 11—Control of Weapons Act 1990 (Vic) (link below)

What warrant authorises

This warrant authorises police named on warrant to:

  • enter and search premises named in warrant
  • search premises and every person found on the premises and
  • seize and detain any prohibited weapon found
  • police can use reasonable force that is necessary to conduct the search.

Note: Police do not need to have any suspicion that a person on the premises has any connection with a prohibited weapon.

See s. 11—Control of Weapons Act 1990 (Vic) (link below)

Search for drugs and associated items

Police may conduct personal searches for drugs in the following circumstances:

Search for drugs without warrant

Police may search a person in a public place without a warrant if they have reasonable grounds to suspect that the person possesses a drug of dependence.

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

Search for volatile substances

Police are also permitted to conduct a personal search relating to volatile substances.

See Volatile Substances—Searches for volatile substances

Warrant to search for drugs

Police may also apply to court for a warrant to search property.

For more details about drug searches see Searching for drugs

More information

Legislation

Drugs, Poisons and Controlled substances Act 1981 (Vic)

  • Part 4 Div 2—Volatile substances
  • s. 60E—police may search person under 18 years of age without warrant
  • s. 60F—search of person irrespective of age without warrant
  • Part 6—Search, seizure and forfeiture
  • s. 81—warrant to search premises
  • s. 82—search without warrant

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

Firearms Act 1996 (Vic)

  • s. 149—search of persons or vehicles

See Firearms Act 1996 (Vic) Opens a new window(opens in a new window)

Fisheries Act 1995 (Vic)

  • s. 101G—power to search for a priority species
  • s. 101H—records of searches

See Fisheries Act 1995 (Vic) Opens a new window(opens in a new window)

Food Act 1984 (Vic)

  • s. 20—authorised officers

See Food Act 1984 (Vic) Opens a new window(opens in a new window)

Graffiti Prevention Act 2007 (Vic)

  • Part 3—powers of search and seizure

See Graffiti Prevention Act 2007 (Vic) Opens a new window(opens in a new window)

Control of Weapons Act 1990 (Vic)

  • s. 10—search without warrant
  • s. 11—warrant to search

See Control of Weapons Act 1990 (Vic) Opens a new window(opens in a new window)

See also Control of Weapons Act 1990—Schedule 1—Conduct of searches Opens a new window(opens in a new window)

Corrections Act 1986 (Vic)

  • Part 6 Div. 3—Search and seizure
  • s. 44—formal searches
  • s. 45—search
  • Part 9A—Search and seizure in police gaols

See Corrections Act 1986 (Vic) Opens a new window(opens in a new window)

Court Security Act 1980 (Vic)

  • s. 3—powers of authorised officer

See Court Security Act 1980 (Vic) Opens a new window(opens in a new window)

Gambling Regulation Act 2003 (Vic)

  • s 2.6.2—search and seizure of instruments of betting

See Gambling Regulation Act 2003 (Vic) Opens a new window(opens in a new window)

Confiscation Act 1997 (Vic)

  • s. 3—defines tainted property
  • s. 79—warrant to seize tainted property

See Confiscation Act 1997 (Vic) Opens a new window(opens in a new window)

Reference

Criminal law, investigation and procedure (Freckleton's)

VLA subscribes to this Westlaw service for detailed criminal law commentary.

See Search and seizure—Overview [SAS.20] Opens a new window(opens in a new window)

Updated