Search powers: When the police can search you, your home or your things

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.

Searching your home and property

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:

  • your permission as the occupier – called a “consent search”, or
  • a statutory search power – that is, a legal power given by an Act of Parliament, which could be with or without a warrant. If the police use a statutory search power rather than relying on your consent, there are certain steps they have to follow (see below, “Your rights if the police use a statutory search power”).

Consent searches: Searching your home or things with your permission

Search and Surveillance Act 2012, ss 91-96

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:

  • to prevent a criminal offence
  • to protect someone from being harmed or injured, or to prevent property being damaged or destroyed
  • to investigate whether a criminal offence has been committed
  • to search under a specific power granted by an Act.

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.

Searching your home or things under a search warrant

Search and Surveillance Act 2012, s 103

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:

  • which statutory provision authorises the search,
  • the place to be searched,
  • the specific items to be searched for, and
  • the alleged offence that has been or will be committed and is the subject of the warrant.

Search warrants are issued subject to conditions, which usually include the following:

  • The police may only seize items that are referred to in the warrant (but police may seize items in plain view if they believe they have another power to seize the items – such as if they find drugs while searching for a stolen item).
  • A search warrant is valid for 14 days from the date on which it is issued.
  • A search warrant may be executed at any time of day or night that is reasonable in the circumstances, whether the occupier of the premises is present or not.
  • The police officer executing the warrant must have the warrant in his or her possession and must show the warrant if requested to by the occupier.

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.

Can the police use force when they’re searching?

Search and Surveillance Act 2012, s 103

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”).

Search of property without warrant under statutory power

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:

Search and Surveillance Act 2012, s 20

  • Drugs – The police can enter and search a place or vehicle if they have reasonable grounds for believing that it contains certain illegal drugs, and a drug offence is taking place or about to take place, and it’s not practicable to get a warrant.

Search and Surveillance Act 2012, s 18

  • Weapons – The police can enter and search any place or vehicle, if they have reason to suspect that there are firearms, ammunition, explosives or restricted weapons that are there in violation of certain sections of the Arms Act or that were used in a serious crime.

Search and Surveillance Act 2012, s 17

  • Vehicles – The police have various “stop and search” powers that authorise them to search vehicles. For example, they can search any vehicle not on private land if they’ve got reasonable grounds to believe it contains evidence of a serious crime (one punishable by a jail term of 14 years or more, like rape or aggravated robbery). Specific conditions are set down for the exercise of these powers.

Searching you personally

The police can legally search you if:

  • you agree to being searched, so long as they’re searching for something they legally have the power to search for, or
  • have a specific search power under an Act, or
  • they arrest you.

Searching you with your consent

The police can search you if you give them permission to do this.

Search and Surveillance Act 2012, s 124

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).

Search you under statutory authority (a power in an Act)

There are several situations when police have the power to search you, with or without a search warrant:

Search and Surveillance Act 2012, s 22

  • Drugs – if the police have reasonable grounds to believe you have illegal drugs on you

Search and Surveillance Act 2012, s 18

  • Weapons – if the police have reasonable grounds to suspect you’re carrying firearms or offensive weapons.

Search and Surveillance Act 2012, s 27

Searching you after you’ve been arrest

Search and Surveillance Act 2012, s 85

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.

Search and Surveillance Act 2012, s 88

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.

Search and Surveillance Act 2012, s 125

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.

Search and Surveillance Act 2012, s 21

These searches all have to be done in a reasonable way, and you must be provided with reasonable privacy.

Requirements if the police search you under a statutory power

New Zealand Bill of Rights Act 1990, s 23

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:

  • you have the right to stay silent
  • you have the right to talk to a lawyer in private without delay, and that you can get free legal advice from a lawyer under the Police Detention Legal Assistance Scheme
  • anything you say can be noted down and used in evidence against you in court.

The police officer must also:

  • identify himself or herself to you and, if not in uniform, produce ID
  • tell you you’re going to be searched, and why
  • tell you the particular statutory power the search is being carried out under, including the name and section number of the relevant Act
  • tell you about your rights under the New Zealand Bill of Rights Act 1990.

What you can do about an unreasonable or illegal search

What can I do if the police conduct an illegal or unreasonable search?

New Zealand Bill of Rights Act 1990, s 21

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.

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