People are often unaware that if police enter a person’s residence with a search warrant, officers may seize items of that’s person’s property under certain conditions.
In Queensland, specifically, police have the right to seize items of a person’s property if they reasonably suspect it may be evidence relevant to the commission of a criminal office, or property to which the search warrant relates.
This post takes a look at this power in more detail – what police must do when they seize property, and what a person’s rights and responsibilities are when it is their property that is seized. If you have had property seized by police, you should seek the guidance of expert criminal lawyers as soon as possible.
What powers do police have?
Under Queensland’s Police Powers and Responsibilities Act 2000 (‘PPR ACT’), police may enter premises to the extent permitted by the warrant and use all powers necessary to execute it, including using reasonable force (section 615). Under section 157 of the Act, any evidence then found by a police officer during a search may be seized.
Even when police do not possess a search warrant, they have certain powers to search persons, vehicles and public places if they reasonably suspect that a person possesses an unlawful weapon, dangerous drug or stolen property, or if they believe the person to possess evidence relevant to the commission of a criminal offence.
During these searches police can seize things they reasonably believe to be evidence, or if a person is in possession of something (such as a weapon) that they might use to harm themselves or others.
When police seize an item of property, they must provide a receipt (known as a ‘field property receipt’) acknowledging their possession of the item to the person they seized it from as soon as is reasonably practicable. An exception to this requirement exists if providing a receipt would impede the progress of an investigation, such as where an item was seized without the owner’s knowledge during a covert operation.
The property receipt must describe the thing seized and must be left in a noticeable place if the owner cannot be handed it in person.
Property seized must be returned within 30 days
When police seize an item of property, it must be returned to its owner within 30 days unless it is evidence in a charge that a criminal offence has been committed.
If no charges or legal proceedings are commenced by the police within 30 days, the force must seek an order from a Magistrate to be able to continue to retain the property.
Should the 30-day period pass without police returning the seized property, or they do not have a court order permitting them to retain the item/s, the owner of the property can apply to the police to have it returned. Should the police refuse this request, an owner may apply to a magistrate seeking an order for the property to be returned.
A person may also apply to the police to have property returned where police have notified the owner that if an application is not made within 28 days to a court to have the property returned, it may be forfeited to the state.
The legislation and the procedural manual for Queensland police officers indicate that police should try to copy or photograph items of seized property in order to return it to the owner at the earliest possible time. But in the quest to have the most persuasive and authoritative evidence available in a criminal prosecution, police may not observe this directive.
What happens to the property if it is seized and held until a criminal prosecution is completed?
The court will generally make an order in relation to the seized property at the end of a criminal proceeding. The order can be that the item or items be returned to the owner, be forfeited to the state, destroyed or disposed of.
If the court makes no order, police will either return the items to the owner or send a forfeiture notice to the owner. A forfeiture notice will be employed by police if it believes the item was used in the commission of a criminal offence; it must be retained to provide it being used in the commission of a criminal offence; or because possession of the item is unlawful (weapons, illicit drugs, for example).
If the owner of the property that is the subject of forfeiture notice objects to it, they can apply to a Magistrate within 28 days after the notice is given for the property to be returned.
The issue of police seizing property unlawfully
Under the PPR Act, police must follow a number of procedures in executing search warrants and seizing property. If there is a mistake in the process, such as searching an incorrect address or seizure of property that is not relevant to the terms of the warrant, then this evidence is potentially inadmissible in a later criminal proceeding because it was not obtained by lawful means.
The court uses a ‘public interest’ test to balance the unlawfulness of the police conduct against the possibility of a person who committed a criminal offence being ‘let off’ on a technicality relating to search and seizure of evidence.
If you have been given a receipt for property seizure, it’s wise to seek specialist legal advice as soon as possible. Expert criminal law firm Hannay Lawyers will take you through your rights in relation to your property and ensure that the police force observes all its statutory duties when it comes to retaining possession of items.
Our long experience in representing people who have been subject to search and seizure by police allows us to provide you with timely, relevant and understanding advice so that your rights are protected.