Search Warrants
Part 2

by Graham Maranda

Part 1 of this article on search warrants contained information on these aspects:

• What is a Search Warrant?
• Legislation in Other Jurisdictions
• Police Activities that Go with Executing a Search Warrant
• The Long-Standing View by the Courts
• Reasonable Belief and Grounds
• Two High Profile Examples that Changed the Way NSW Police were Required to Conduct All Subsequent Search Warrants

We now begin Part 2, which covers the following:

• The Inquisitor (Critical Review of a Search Warrant)
• Service of the Occupier's Notice
• Hours of Execution
• Announcing Presence before Entry
• The Informant
• Police Characters
• False or Misleading Information
• My Final Say

THE INQUISITOR

During any critical review an inquiry will undertake to ascertain:

• Why certain actions or inactions were undertaken.
• Why certain records were or were not made.
• How decisions were reached in pre-search warrant planning.
• Critical dissections of the search warrant application.
• Linking that application to, and cross-examining the Operational Orders.
• Slowly analysing the actual operational phase of the warrant, correlating those actions against the proposed actions as set out in the Operational Orders.
• Interrogating command and control & their decision-making.

Therefore good practice is that the search warrant planning documents, decision-making and gathered information be retained and archived with the investigation papers.

SERVICE OF THE OCCUPIER'S NOTICE [NSW Search Warrants]

The Occupier's Notice is a three [3] paged document within the Search Warrant that MUST be served upon the occupier upon execution of the warrant. 

The notice must be served on an occupier who appears to be above 18 years of age.  Failure to serve an Occupiers Notice is contrary to law Black v Breen & Others [NSW Supreme Court (27 October 2000)]. If the Occupier's Notice cannot be served then, after the warrant has been executed you must go back to the issuing Justice and seek direction in what to do with the notice. 

The Occupier's Notice sets out under appropriate headings:

• Informs a person a search warrant has been issued for the premises
• Giving authority and power to the police to enter and search.
• Reasonable force may be used to enter and search
• Reasonable force may be used to gain entry to or open any receptacle.
• The basis for issue of the warrant (describes the offences related).
• Tells the things police are searching for (described in warrant).
• The occupier's entitlement to inspect the Application for the Search Warrant.
• Hindering or Obstructing Warrant Execution is a criminal offence.
• Entitlement of occupier to challenge issue of the warrant (through later legal process).

HOURS OF EXECUTION

Within New South Wales police have 72 hours from the time the warrant is signed, timed and dated by the Justice. The issued warrant will clearly set out the times of entry (which are 6am to 9pm) during the 72 hour period.  Why only between 6am and 9pm?  It is due to the importance Courts place on favouring protection of the personal freedoms of the individual.

However, police are able to make, in special circumstance, application to the Justice for the search warrant to allow lawful entry also at night (9pm to 6am).  In other words during that 72 hour window police will be able to execute the warrant at anytime of the clock.  An example of this allowance is where police are aware that a drug delivery will be taking place and most likely around 11pm or later. 

How do police become aware of this fact?  Well that can be due to information vide a telephone intercept, a listening device installed in one of the targets premises, an informant coming forward or a criminal associate being charged with another matter and wanting to cut a deal to obtain a lighter court sentence or more titillating- the wife / girlfriend of the criminal may be getting pay back after a soured relationship.  Would a wife / girlfriend provide information to police?  Oh yes sir, more often than many might think.

 
ANNOUNCING PRESENCE BEFORE ENTRY

NSW legislation requires police, before entering the premises, to announce they are authorised by warrant to enter.  Usually the straight forward words called out "Police - Search Warrant - Open Up" satisfy the requirements of the law.   Additionally, police must give any persons on the premises opportunity to allow police entry into the premises.

However, it is also legislated that police executing a search warrant are not required to comply with the aforementioned requirements if on reasonable grounds it is believed immediate entry is required to ensure the safety of any person or to ensure that the effective execution of the search warrant is not frustrated. 

Generally police will enter immediately without announcing office and demanding entry in circumstances where they believe on reasonable grounds that entry will be / is being frustrated (slow opening of front door - "I'm looking for the key" response or similar) which may be facilitating destruction of evidence.  That is to say, loss of evidence will result in entry being delayed.

THE INFORMANT

We have all seen the Hollywood Detective story that contains the informant who, generally for money or wanting to strike a future court deal, provides police with inside information that assists in bringing down another criminal.  In the NSW Search Warrant legislation the 'informant' is protected from being exposed whereby, if satisfied the justice who issues the search warrant can certify certain records not be available for inspection.

Any matter that might disclose the identity of a person shall not be recorded in the application if the justice is satisfied the safety of any person might thereby be jeopardised. 

The legislation says:

• The justice may issue a certificate if the justice is satisfied:
• That could disclose a person's identity, and if disclosed, is likely to jeopardise that or any other person's safety.
• If disclosed, may seriously compromise the investigation of any matter.
  The document or part of the document to which the certificate relates is not to be made available for inspection.

POLICE  CHARACTERS

When police execute a search warrant the place that they enter in essence is under their strict control.  It has to be that way for the safety of everyone involved; the police, the suspect, the family or any visitors who may happen to be in the house when the warrant is executed.  In New South Wales the Search Warrant Act provides for the offence of Hinder Execution of Warrant which simply means a person shall not, without reasonable excuse, obstruct or hinder a person executing a search warrant. 

So in effect, if a person is not complying with a reasonable request they can be arrested for hinder warrant.  To allow any occupant to wander around the house is bad practice; the house may contain a hidden firearm; moreover, how many knives does a kitchen contain? It is simply not good practice to have house occupants wandering around like Brown's cows.

In order to maintain control of premises I have said on occasions to my clients, "I want to go home and have Weet-Bix with my kids in the morning".  Usually once the safety aspect is explained including that they can be arrested for hinder, things carry on smoothly.

The 'Good' cop is the one who facilitates Occupant Dignity.  That is providing dignity to all those inside the house.  Mostly, the people inside the house are family or friends of the person you are investigating. The 'good' cop is the one who explains what is unfolding as things progress, has more patience with the occupants who may be agitated - but the 'good' cop is also one who is firm but fair - is a no nonsense player.  On the other hand, the 'bad' cop has no fundamental respect for occupant dignity.  The bad cop gets other cops into trouble by undertaking short cuts.  That is failure to follow proper practice & procedure.

When working in investigation teams all investigators have a particular skill they are better at than any of the others.  For the search warrant application this is also a particular skill.  Besides, when you make application you want to be fairly sure the warrant is going to be granted.

Particularly when investigating victim crimes (murder, serious assaults, armed robbery, property theft etc) as every piece of evidence you fail to unearth makes it more difficult to present a successful prosecution case to the Judge / Jury. 

So, your investigator who puts together a warrant application is one who is usually very trusted and diligent in collating information then transcribing that information into a very well worded application.  You are looking for a wordsmith, one who can paint a picture with words and one who when placing the application to a Justice is able to articulate the case for issue.

FALSE OR MISLEADING INFORMATION

When police make application for a search warrant before the Justice, they swear on oath or affirmation that the information contained within the application is true.  Should police knowingly provide information that is false or misleading then legislation provides for 2 years imprisonment (Search warrants Act) or 7 years imprisonment under the NSW Crimes Act.

Once again another balance by the lawmakers to ensure a police officer doesn't fabricate or provide misleading information, knowingly, in order to obtain a search warrant.

MY FINAL SAY

From my personal point of view, executing a search warrant is a high risk aspect of policing.  No slip-ups can be afforded.  You never know who is on the other side of that front door.  

Professionalism is needed in all the work leading up to applying for a search warrant, then the subsequent execution and hopefully seizure of what you went looking for is actually found.  Then making sure the exhibits are properly handled and stored, then where necessary scientifically examined.  The trail of 'exhibit continuity' must be clearly set out in all the police witness statements.

Because in the end all your hard work is paid for when all matters associated with the search warrant are put on the court room table and tested under law not only by the Defence Lawyers, but also the Judge and Crown Prosecutor.  That is why short cuts in police practice & procedure are never a good idea.

© Graham Maranda.