You have been served with a search warrant. What now?

The knock at the door is loud and it is not a question. Officers identify themselves, announce that they are executing a search warrant, and ask you to step aside. You have, in the most precise sense, about thirty minutes to think clearly. This note is the playbook for those thirty minutes. It explains how to read the warrant, what to say, what to record, and what to do once the officers have gone. It is written for the time after you have stopped panicking and before your lawyer gets to you.

The legal architecture in two sentences.

Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) is the source of police search-warrant power in New South Wales. Section 47 gives a police officer the power to apply to an eligible issuing officer, on reasonable grounds that there is or will be within 72 hours a thing connected with a searchable offence at the premises, for a search warrant authorising entry and search of those premises.

The issuing officer is usually a magistrate. The warrant is in writing. It identifies the premises, the things it authorises police to seize, the period within which it must be executed, and whether it is a covert warrant (executed without notice) or an ordinary warrant (executed in your presence). Almost every warrant our clients are served with is an ordinary warrant.

The first six minutes. Read the warrant.

The single most important act in the first six minutes is to read the warrant. Officers must produce it on entry or as soon as practicable after entry. Ask for it. Read it.

Six things matter on the face of the warrant.

1. The premises. The warrant authorises entry of the premises named on it. If the warrant says "the residence at 12 Smith Street, Newtown" and the officers want to search a neighbouring shed, a separate flat, or another unit, the warrant does not, of itself, authorise that. Ask which premises the warrant covers.
2. The offence. The warrant identifies the offence the search relates to. That offence is the lens through which any later objection to the seizure of unrelated items will be tested.
3. The items. The warrant lists the categories of things police are authorised to seize. The list is not "everything." A warrant for a drug investigation does not authorise the seizure of unrelated banking material unrelated to the alleged offence. Note the list.
4. The expiry. A search warrant must be executed within the period stated on it. Most warrants in New South Wales are in the order of seven to fourteen days. A warrant outside its execution period is no warrant at all.
5. The issuing officer. The name of the magistrate or other issuing officer is on the warrant. So is the date of issue.
6. The occupier's notice. Under section 67 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the occupier must be given a separate occupier's notice. The notice is short and sets out, in plain English, what the warrant authorises and your rights during the search. Ask for it. If you have not been given it, ask why.

You are not required to challenge the warrant on the doorstep, and you should not. The forensic value of the document is captured by reading it; the lawyers will challenge it, where there is a basis to do so, later.

What to say. Almost nothing.

The right to silence applies during the execution of a search warrant. Section 89 of the Evidence Act 1995 (NSW) is the rule: an unfavourable inference must not be drawn from a failure to answer questions put by an investigating official. The narrow section 89A exception requires a special caution, a lawyer in the room, and a serious indictable offence; none of those conditions is satisfied at a doorstep search. Decline to answer questions on the substantive matter. Be polite. Be brief.

The script is short.

1. "I am the occupier. May I see the warrant and the occupier's notice."
2. "I will not be answering questions today. I would like to contact my lawyer."
3. If officers ask you to identify a particular item or unlock a particular device, repeat: "I am not going to answer questions today."

You will be tempted to explain. Officers will sometimes lower the temperature with conversation that sounds informal. Body-worn-video is on. The conversation is evidence. Treat the friendly officer the same way you treat the formal one.

Identity, devices, and the lawful demands you cannot refuse.

The right to silence does not extend to every interaction during a warrant.

Identity. Where police are investigating an indictable offence and have reasonable grounds to require it, section 11 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) lets them require your name and address. Provide it. Refusal can be an offence in its own right.

Devices. Police can seize devices that fall within the warrant. Whether they can require you to unlock a device is a separate question. Part 5 Division 4A of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), beginning at section 76AA, contains the digital evidence access order regime. Sections 76AB to 76AF set out the application, the criteria, and the form of order under which an eligible issuing officer (typically a magistrate) can require a specified person to assist police to access data held on a device that has been seized under a warrant or that police otherwise lawfully hold. The order is made by the issuing officer, not by police at the door. If officers ask for a PIN, fingerprint or face-scan at the doorstep, the answer is, until you have spoken to a lawyer, no. If a digital evidence access order is later made, the lawyer's advice will guide your response.

Movement and supervision. Officers can require you to remain in a particular room during the search, and they can ask you to keep your hands visible. Comply. Where you have small children or vulnerable adults at the premises, ask politely whether you can sit with them. Confrontation with an officer during a warrant does not help anyone.

What to record.

You are allowed to keep a record of the search. You are allowed to use your own phone to do so, subject to officers' directions about where you can stand. The lawyer who reads the brief in three months' time will use that record. The things worth recording are:

• Time of entry and time of exit. The two minutes that bookend the search. The duration is sometimes part of a later challenge.
• Names and ranks of every officer present. The lead officer's name will be on the warrant return; the supporting officers' names will not be. Write them down.
• What was seized and what was not. Officers will give you a list of seized items. Cross-check it against what you observed being taken. Discrepancies matter.
• What was said. Direct quotations from officers, where you can capture them, are useful. Approximate paraphrases are also useful. The lawyer can work with both.
• The state of the premises after the search. Photograph each room before officers leave. The recovery of damaged property after a search is its own conversation.
• The vehicle and registration of the police unit. Photograph the unmarked car if you can do so without obstructing officers.

You do not need to confront, narrate or provide commentary. You are observing and recording.

The seizure list and the receipt.

Officers must leave a list of the things seized. Make sure you have it before they leave. If items have been taken that are clearly outside the warrant (the warrant relates to a drug investigation, the officers have taken your accounts ledgers), note the inconsistency on the receipt at the time it is given to you, in writing, by signing under a notation that reads "I do not agree these items fall within the warrant." That note does not change what officers can take. It records your position on the day. The lawyer will use it later.

If a device has been seized, ask whether a copy is being made on the premises (a forensic image), or whether the device is being taken away. Most are taken away. Estimated return periods are sometimes given on the receipt; they are estimates, not commitments.

The challenge after the fact, not at the door.

The forum for challenging a search warrant is the court the criminal proceeding is later listed in. The principal grounds of challenge in New South Wales are: that the warrant was issued without the statutory reasonable-grounds threshold being met, that the warrant exceeded the issuing officer's power (it was too wide, it described the things to be seized too generally, or it was directed at premises where there was no basis for it), that the execution was outside the warrant's authority (the search continued for hours beyond what the warrant supported, items were taken that fell outside the warrant), or that the announcement and notice requirements of Part 5 were not complied with.

Even where the warrant or its execution was defective, exclusion of the evidence is not automatic. Section 138 of the Evidence Act 1995 (NSW) sits at the centre of any application to exclude. Evidence obtained improperly or in contravention of an Australian law is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting it. The court weighs the probative value of the evidence, the importance of the evidence in the proceeding, the gravity of the impropriety, whether the impropriety was deliberate or reckless, and whether other proceedings have been or are likely to be taken in relation to it. Section 138 is the workhorse provision. It is, in our experience, the most-used basis for excluding the product of a defective search.

The first hour after the officers leave.

Once officers have left, the work shifts.

1. Call a lawyer. Not later that day, not in the morning. The first hour after a warrant is the most useful hour for a defence lawyer's preparation. Memory is fresh. The seizure list is in your hand. Officers have not yet finalised their notes.
2. Write a memo. Sit down and write a chronological account of the search. Stick to what you saw and what was said. Do not theorise about why officers came. The memo is for your lawyer.
3. Preserve communications. Do not delete messages, emails or photographs. The deletion is itself an offence in some circumstances. The text history may also be exculpatory.
4. Do not contact co-accused. If officers searched your premises in connection with an investigation involving other people, do not call those people. Communications between co-accused after a search are routinely captured and almost always used against the participants.
5. Do not talk to anyone you do not have to. Family members and close friends will ask. Politely defer. The fewer accounts of the search you give to anyone other than your lawyer, the less you have to align later.

One last note.

A search warrant is the beginning of an investigation, not the end of one. Police do not usually execute a warrant unless there is already a prosecutorial intention behind it. In most matters our clients are charged within the days or weeks that follow. The principal work that a defence lawyer does in the period between the warrant and the charge is to read the brief as it emerges, to identify the points at which the search may be vulnerable to challenge, and to plan the cross-examination of the executing officers if a section 138 application is run.

The doorstep is the wrong place to fight that fight. The right place is the hearing. The thirty minutes the warrant gives you are the minutes in which you protect your ability to fight that hearing well: by reading the document, by declining to answer questions, by recording what happened, and by calling a lawyer the moment officers have driven away.

This note is general information about the execution of search warrants in New South Wales and the immediate response by an occupier. It is not legal advice for any particular case. The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the Evidence Act 1995 (NSW), and the case law on search warrants change. For advice on a real matter, contact us through our contact page or phone 0421 717 019.

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