How to obtain a search warrant

Opponents of the exclusionary rule, however, argue that it lets guilty criminals go free on technicalities. In addition, evidence obtained through illegal searches cannot lead police to the discovery of other evidence. This legal rule, known as the "fruit of the poisonous tree," is also designed to prevent government actors from invading people's privacy by conducting unreasonable searches.

If police know, so the theory goes, that any evidence they obtain based on what they discover in an illegal search will be thrown out, they won't conduct illegal searches in the first place. Here are a few examples to illustrate the exclusionary rule and the fruit of the poisonous tree doctrine:. Officer Joe suspects that Chris is selling drugs. Without a warrant, Officer Joe walks into Chris' house and finds drugs and a scale on the kitchen table. Officer Joe arrests Chris, but the judge throws out the evidence of the drugs and scale on the basis of the exclusionary rule.

In the example above, instead of finding drugs and a scale, Office Joe finds a map to locations throughout the city where Chris is storing his drugs for sale. Officer Joe collects the drugs and enters both them and the map as evidence. The map is thrown out because of the exclusionary rule, and, because Officer Joe would not have discovered the drugs without the map, the fruit of the poisonous tree doctrine prevents the use of the drugs as evidence.

It's important to note, however, that just because the prosecution can't use certain evidence at trial, it doesn't mean that a judge will dismiss a case or that a jury will acquit the defendant. Prosecutors may have enough other evidence to convict the defendant even without the results of the illegal search.

Plus, while prosecutors can't use improperly obtained evidence to secure a conviction, that evidence may enter into other areas of the trial. For instance:. Evidence issues arise in nearly every kind of case, but the rules of evidence are complicated and sometimes depend on local laws. The Police Powers and Responsibilities Act Qld is the legislation which governs the issue and operation of search warrants in Queensland. Any judge of any Queensland court can issue search warrants on application by police under oath.

Police must obtain a search warrant which specifies their search includes searching a phone or computer. If the warrant does not specify that police have that power, you have the right to refuse. If it is specified in a search warrant, you must provide codes and passwords to allow access. More information about search warrants in Queensland can be found in our dedicated article, Search Warrants in Queensland. New South Wales police will generally need to apply for the issue of a search warrant under the Law Enforcement Powers and Responsibilities Act NSW if they wish to collect evidence of a commission of an offence.

A Justice of the Peace, magistrate or judge must be satisfied that reasonable grounds exist to believe that there will or is evidence and that evidence will likely lead to an arrest before issuing a search warrant. Only sergeants or above can apply for such search warrants. If granted, drug premises search warrants give NSW police the power to search anyone on the premises, not just those who are named in the search warrant.

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A magistrate will issue a search warrant after an application by a police officer. Before granting a search warrant, the magistrate must be satisfied that there are reasonable grounds that there is or will be within 72 hours:. Search warrants in Victoria are valid for seven days, unless otherwise allowed by the magistrate. More about search warrants in Victoria can be read in our dedicated article, Search Warrants in Victoria. For search warrants other than those issued under the Misuse of Drugs Act , police are limited to conducting their searches between 6am and 9pm.

The exception to this is if there is someone in danger or there is a real chance the effectiveness of the search will be jeopardised. The Justice of the Peace must be satisfied from the information provided by the police on oath that there are reasonable grounds for suspecting there is, or will be evidence of a crime at the premises. Search warrants in Tasmania are valid for 28 days. If the search warrant is issued over the phone, it is only valid for 48 hours.

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More information about search warrants in Tasmania can be found in our article, Search Warrants in Tasmania. General search warrants are issued by the Commissioner for Police and are valid for six months, unless a shorter period is specified. General search warrants are only issued if the police have reasonable cause to suspect goods have been stolen, a crime has or will be committed, a thing that may be used to commit a crime is at that premises, or to collect evidence of a crime.

General search warrants give SA police the power to search vehicles, vessels, people and property. More information about search warrants in SA can be found in our dedicated article, Search Warrants in South Australia.

Search warrants in Queensland

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