Caught Off Guard? What You Need to Know About Warrantless Searches in New Zealand
In New Zealand, the Police and other enforcement agencies generally require a search warrant to search items on your person, your vehicle, or property. However, there are circumstances where they have the legal authority to conduct a search without a warrant. Understanding your rights and obligations in these situations is crucial to protecting yourself and ensuring that any law enforcement officer follows the law themselves.
When Can Police Conduct a Warrantless Search?
1. If You Consent
If you voluntarily agree to a search, the Police do not need a warrant. It is common for a Police officer to first ask you whether you are happy for them to conduct a search. However, you are under no obligation to consent, and you have the right to refuse unless they have another legal basis for the search. Before deciding whether to provide consent for a search, it is important to ask the officer whether you are legally required to comply. It is often best to contact a lawyer immediately in order to obtain advice.
2. Under the Search and Surveillance Act 2012
The Search and Surveillance Act 2012 provides specific circumstances where Police and other agencies can search without a warrant. These include:
Searching a Person for Drugs: If Police have reasonable grounds to suspect that you are in possession of illegal drugs, they can search you, your vehicle, or any bag or item in your immediate control.
Weapons Searches: If Police have reasonable grounds to suspect that you have a weapon, such as a firearm, in breach of the Arms Act 1983, they may search you or your vehicle.
Searches Relating to Certain Offences: If Police have reasonable grounds to believe you are in possession of evidential material related to a serious offence (one with a penalty of 14 years or more, such as murder or serious drug dealing), they may conduct a search.
Emergency Searches: If Police believe that waiting for a warrant would result in danger to life, property damage, or the destruction of evidence, they may conduct a search. However, if it can be done safely the Police should, at first instance, secure the scene so that a search warrant can be obtained.
Searches Following Arrest: If you are lawfully arrested, Police can search you and your immediate surroundings for evidence, weapons, or anything that might assist in your escape.
3. Border and Customs Powers
Customs officers have broad powers to search people, baggage, and electronic devices at the border, even without suspicion of wrongdoing. Under the Customs and Excise Act 2018, Customs officers can:
Search Baggage and Cargo: Officers may search your bags and any cargo entering or leaving the country for prohibited items such as illegal drugs, undeclared cash, or biosecurity risks.
Search Electronic Devices: Customs can examine the contents of your electronic devices, such as laptops and mobile phones, without a warrant. They can require you to provide access, including passwords, under certain circumstances.
Body Searches: If Customs officers have a reasonable suspicion that you are concealing prohibited goods on your person, they may conduct a personal search. More invasive searches, such as internal body searches, require approval from a senior officer and must be conducted by a medical professional.
Seize and Detain Goods: Customs officers have the authority to seize goods they believe are unlawfully imported or exported and may detain individuals suspected of committing Customs offences.
If you are stopped by Customs, you should remain cooperative but be aware of your rights. If you believe your rights have been infringed, you should seek legal advice as soon as possible.
What Should You Do If Police Try to Search Without a Warrant?
If you are approached by Police or another enforcement agency attempting a warrantless search, consider the following:
Stay Calm and Polite: Do not resist physically, as this can lead to additional charges.
Ask for the Legal Basis: Politely ask the officer to state on what basis they are conducting the search. For example, if they are conducting the search because they believe you are in possession of drugs or weapons.
Do Not Consent Unnecessarily: If Police ask for your consent, you have the right to refuse unless they have a legal power to search. The Police officer is legally required to advise you that you have the right to refuse to consent to any search.
Record the Interaction: If possible, take note of the officers' names and badge numbers and consider filming the encounter if it is safe to do so.
Seek Legal Advice: If you believe the search was unlawful, contact a criminal defence lawyer as soon as possible. It can be important to write down or record as much about your interaction with the Police officer as you can at a time when it is still fresh in your memory.
Can You Challenge an Unlawful Search?
If Police conduct a search without legal authority, any evidence obtained may be ruled inadmissible in court. If you believe your rights have been violated, and charges have been laid against you, then you can raise a challenge to the admissibility of the evidence obtained from the search (and any other evidence subsequently obtained as a result) in court. The judge can then decide whether the evidence should be excluded or not.
Need Legal Help?
If you or someone you know has been subjected to a warrantless search and you are unsure about your rights, contact Steven Lack today for expert legal advice. Steven has considerable experience in challenging the admissibility of evidence which has been improperly obtained. He can assess the legality of the search, challenge any unlawfully obtained evidence, and protect your rights.
About the Author
Steven Lack is a leading criminal defence barrister based in Auckland, specialising in serious crime, including drug offences, homicide, and financial crime. With a strategic and meticulous approach, he provides expert legal representation for clients facing complex criminal charges.
For more information about Steven’s practice, visit About. If you need expert legal advice, explore the Legal Services he offers or Contact him directly.