There are important restrictions on when the police can search your home, your car, your bags and other things, and you personally. They can only do it if they have your permission (“consent”) or if they have a specific legal power, either because they’ve got a warrant (written authority) from a judge or it’s a situation where an Act of Parliament gives them the power to do it without a warrant.
But even if you agree to the search, the search may still be illegal in some situations – which means that, for example, the police might not be able to use things they find as evidence against you if they bring criminal charges in court.
There are important restrictions on when the police can search your home, outside areas like your backyard, and other places such as your car, when they have:
In certain situations, the police are allowed to ask you for your permission to search your home or property. If you agree, the police can search your home, vehicle, bag or other thing under your control if it’s for one of the following purposes:
The police can’t ask for your permission to conduct a search unless it’s for one of those four purposes. Before they search, the police officer also has to tell you the reason for the search, and also that you can either give or refuse permission. If the police break any of those rules, the search is illegal: see in this chapter, “What you can do about an unreasonable or illegal search”.
The search can’t go beyond what you’ve agreed to. For example, if the police have asked you for permission to search your living room, and you’ve agreed to this, they can’t then also go off and search your bedroom. You might also have only agreed to them searching for a limited time – like 15 minutes.
You can withdraw your consent at any time, and the police then have to stop the search straightaway, unless something has happened to give them a legal power to keep searching – for example, they’ve found illegal drugs. But in that case, there are also some things the police have to do before they can keep searching, including giving you some important information about your rights (see below, “Your rights if the police use a statutory search power”).
If you’re under 14, you can’t legally consent to a police search, unless you’ve been found driving a vehicle and there’s no-one else in the car who’s 14 or older.
Note: Search and Surveillance Act 2012, s 96
The rules about consenting to searches don’t apply if the search is a condition of entry to any public or private place.
The police can apply to the courts for a search warrant if they want to search a building or other place, like a vehicle, aircraft or freight container, for evidence that a criminal offence punishable by a jail term has been committed. The police have to provide a judge or other court official with information to support their belief that evidence is present there. If the judge is satisfied that there are reasonable grounds for the belief, he or she will issue a search warrant.
A search warrant must state, with sufficient detail:
Search warrants are issued subject to conditions, which usually include the following:
A search warrant does not authorise the police to search people found on the premises, unless while on the premises the police form a reasonable belief that a person on the premises is committing an offence that provides for a statutory power of search.
A search conducted must still be conducted in a reasonable manner.
Note: A search warrant may not necessarily relate to a search for property, but may also include a search for people – for example, a warrant to arrest a person, or a place of safety warrant issued under the Children, Young Persons, and Their Families Act 1989.
When police enter and search your home, whether under a court warrant or not, they have to act reasonably. Depending on the situation, this could sometimes include using force. If they’re searching with a warrant, the warrant should say specifically whether the police are allowed to use force.
If the police act unreasonably in carrying out their search – for example by using excessive force against you or by breaking your things – this could affect whether they’re allowed to use any evidence they got from the search when they bring charges against you in court. You may also be able to get a court to order them to pay you compensation (see below, “What you can do about an unreasonable or illegal search”).
The police have the power to search buildings, vehicles and other property without a warrant in certain situations. Here are three of the most common situations:
The police can legally search you if:
The police can search you if you give them permission to do this.
Apart from searching inside your mouth (with your consent), the police can’t do an internal search (or “cavity” search), with or without your consent. Only a doctor can do a cavity search, and only under the strict conditions set out in drug laws (the Misuse of Drugs Act).
There are several situations when police have the power to search you, with or without a search warrant:
When the police have arrested you, they have the power to do a “rub-down” search (frisk you). This involves the police officer running or patting their hands over your body, outside or inside your clothing but not inside your underwear. The officer can put their hand into your pockets and require you to lift or rub your hair, and to show them the palms of their hands, the soles of their feet, or inside your mouth.
However, the police can carry out a more thorough search if they have reasonable grounds to believe that you’re carrying, or have on you, evidence relevant to the offence for which you’ve been arrested, or something that could be used to harm any person or to help you escape.
The police also have a separate power to search, by force if necessary, any person taken into custody – that is, when you’re being held at a police station or in a police vehicle or in any place being used for police purposes. This is a thorough search and is usually carried out in the privacy of the police station.
These searches all have to be done in a reasonable way, and you must be provided with reasonable privacy.
If the police are going to search you under a power granted by an Act, the police officer must first caution you, which means telling you that:
The police officer must also:
A search will be illegal if the police went outside their powers. New Zealand’s Bill of Rights also protects people from unreasonable search and seizure. Whether a search is unreasonable will depend on all the circumstances surrounding the search and the way it was carried out.
If you think a police search of you, your home or your things was illegal or unreasonable, you can complain to the Independent Police Conduct Authority: see in this chapter, “Complaining about the police”.
You could also bring a civil court case for money (damages) under the New Zealand Bill of Rights Act – for example, to get the police to pay for the cost of any damage they caused to your things.
If a search was illegal or unreasonable, or both, and the police bring charges against you in court, the judge may decide not to allow the police to use anything they found in the search as evidence against you. The judge will take into account what the police did and how serious it was, how serious the charges against you are, and the quality of the particular evidence the police want to bring to court and how important it is to their case against you.