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
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
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  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.
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
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
- 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
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
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.