Search powers: When the police can search you, your home or your things
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
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: 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
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 Oranga Tamariki Act 1989.
Can the police use force when they’re searching?
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:
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.
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.
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.