What if the Police turn up at your front door?

The criminal process starts with the investigation of an actual or alleged crime. The power for Queensland police to search premises, question, arrest and / or detain a person comes from the Police Powers and Responsibilities Act 2000 (Qld).

These rules aim to balance the need for law enforcement with the protection of an individual’s civil rights. Being questioned and requested entry to a private residence by a police officer can be daunting and many people are unfamiliar with their rights when this happens.

This article explains a person’s fundamental right to silence and the circumstances under which police officers have the power to enter and search private property or to arrest a person of interest.

The right to remain silent

Understanding the right to silence is important for anybody involved in a criminal investigation. Generally, anything said to a police officer at any time may be used as incriminating evidence. What is said can also determine whether or not a person is charged or arrested.

Apart from some exceptions, a person has a fundamental right to remain silent whether they are stopped in public, have agreed to attend the police station or have been arrested.

Exceptions include answering basic questions such as a person’s name and address (in this case the police must warn a person it is an offence not to give the correct name and address) and place and date of birth (for drug-related matters), or when somebody is suspected of committing a traffic offence.

A person may also be required to disclose their identity and assist a police officer who believes on reasonable grounds that the person can help with enquiries regarding an alleged crime because the person was within its vicinity.

Generally, the police may approach and ask questions at any time however a person has the right to find out why they are being asked questions. If in doubt, the person should obtain legal advice.

Powers of entry and arrest

What are a person’s rights when a police officer requests access to private property? Are they obliged to let the police in? What if the police officer asks for the occupier’s son or daughter? The answer depends on the circumstances and whether the police officer has or is required to have a warrant.

The starting point is that police powers of entry are generally confined to emergency situations, for the purposes of arrest or detention, or to execute a warrant. If the police arrive on private property unannounced or uninvited, the reason for their attendance should be ascertained before allowing entry.

Warrants

A warrant is a document authorising the police to search a person, home or motor vehicle or to arrest a person and / or detain that person in custody. Anything found during a search warrant may be retained by the police.

If the police suspect that somebody with whom a person resides or is visiting has committed an offence, a search warrant may be obtained to search the premises and seize any items, or to arrest the person.

If the property is occupied the police officer must provide the occupier with a copy of the warrant. It is important to read the warrant carefully to confirm its scope. The action that follows will depend on the circumstances and the type of warrant that has been issued. A person in these circumstances should remain calm, assertive but cooperative.

A search warrant must state brief details of the alleged offence to which the warrant relates or the proceedings or legislation authorising the warrant, the evidence or property that may be seized under the warrant and the day and time the warrant expires. If the warrant is to be exercised during the night, the permissible hours that the property may be entered should be also be included.

An arrest warrant may only be issued if there are reasonable grounds for suspecting that the named person committed an offence and, for an offence other than an indictable offence, a court attendance notice to appear before the court would be ineffective.

The arrest warrant must include the name of the applicant, his or her rank, registered number and station, a statement to the effect that the police officer may arrest the person named in the warrant, and particulars of the alleged offence.

Police searches and arrests without a warrant

Police officers may enter any premises without a warrant to prevent domestic violence, to investigate traffic offences (for example to take a prescribed alcohol reading), to apprehend somebody who has escaped from custody or from being arrested, to execute an arrest, to reach a crime scene or to shut down an out-of-control event.

An arrest without a warrant may be executed if it is reasonably suspected that a person is committing, or is about to commit, an offence and the arrest is reasonably necessary to:

• prevent further offences being committed;
• identify the person arrested;
• ensure the person appears in court;
• preserve evidence or prevent the person concocting evidence;
• protect a person (including the person arrested) from injury or harm; or
• detain a person for questioning.

The police officer must make it clear that the person is being apprehended and tell the person why he or she is being arrested.

A valid arrest allows the police to question and identify a suspect. However, unless a formal arrest is made a person is not obliged to accompany a police officer. Arresting a person for investigatory processes only is prohibited.

Additional considerations for young people

There are additional protective provisions to protect young people confronting the criminal justice system. Generally, persons who are under 17 years of age must be accompanied by a support person when being questioned about a serious offence. The role of a support person is to ensure the interrogation is conducted fairly, assist with communication problems and help the young person assert his or her rights. A support person may be the child’s parents, guardian, lawyer, relative, friend or somebody working in an agency that deals with the law.

A statement or admission made to a police officer during an interview is inadmissible in court unless the young person was accompanied by an independent adult when making that statement.

Summary

Police officers have the necessary search and arrest powers to assist in law enforcement. These should be balanced with a person’s civil liberties.

Being approached by a police officer may be daunting however it is wise to stay calm, ask questions, and take notes of the reasons given for the police visit.

If someone you know is concerned about their rights and obligations in the criminal justice system or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.