Why WA Public Servants should insist on the execution of search warrants rather than giving occupier’s consent

When police execute search warrants, it is common practice for occupier’s consent to be sought in lieu of executing the warrant. The practice of seeking and obtaining occupier’s consent is permitted and indeed endorsed by section 30 of the Criminal Investigation Act 2006 (CIA). If an occupier does provide their consent, then the subsequent search is not one done under a search warrant; it is simply a search done at the invitation of the occupier.

Presented with a valid search warrant over a WA Public Servant’s house, should the subject employee simply provide occupier’s consent? Usually no. This does not mean they should obstruct a search or not abide by the warrant, but they should insist that the search be done under the warrant, not occupier’s consent.

“A man’s home is his castle” might have been famously declared by Darryl Kerrigan in the 1997 movie The Castle, although the phrase traces back at least to 1628 when English Judge Sir Edward Coke used that phrase, adding “every man’s home is his safest refuge” and explaining that the English common law jealously guards property. Time might have passed since 1628 but the legal foundation of the phrase remains solid. An occupier can refuse and resist unlawful entry, search and seizure on their land.

There are, of course, now many laws that now allow for statutory warrants to be obtained to make lawful what would otherwise be a trespass. Most relevant for present purposes is the power to enter, search and seize evidence under a search warrant in Part 5 Division 3 of the CIA. When subject employees are the subject of a criminal investigation and the police want to search their house, any warrant to do so will usually be under that Act.

Why should WA Public Servants insist on a search warrant being executed rather than provide occupier’s consent?

Firstly, items seized under a CIA search warrant can only be used for investigation and prosecution of criminal offences. They cannot, for example, be used for disciplinary proceedings under the Public Sector Management Act 1994. That is because search warrants, particularly over a private residence, are deep intrusions on the occupier’s legal rights. Their home is their castle. The subsequent use to which seized items can be put to by the State is constrained by the nature of the warrant. The CIA is only concerned with investigating criminal offences, not disciplinary allegations. Once a seized item is no longer needed for a criminal investigation, it must be handed back to the person from whom it was seized, or disposed of according to law (for example, under a forfeiture order issued by a Court). It would not be lawful for the police to hand the material over to another public agency (ie the employee’s employer) to use the item for the purpose of disciplinary proceedings. There is less scope to argue that items seized under occupier’s consent are subject to the same restrictions on their use.

Secondly, providing occupier’s consent significantly hinders any ability to subsequently argue the lawfulness of the search warrant, considering it is never executed. In the agony of the moment in being presented with a search warrant, usually when a subject employee answers their door and finds investigators on their doorstep, there is little opportunity to make an evaluation about the lawfulness of the search warrant. It’s hard to complain about the invasion of your castle when you’ve needlessly lowered the draw bridge yourself.

Thirdly, occupier’s consent might unwittingly go much further than the terms of the search warrant would have. A search warrant will be limited to a power to enter the exact places and seize the items stated on the warrant. Occupier’s consent is far easier to use to enter places and seize items not listed on the original warrant.

The same approach should apply to seizure of mobile phones, whether that happens at a subject employee’s house or elsewhere, and the giving over of passwords. Generally speaking, it is in a subject employee’s best legal interest to insist on a compulsory process for investigators to seize mobile phones and demand passwords. Many people feel obliged to hand over mobile phones and passwords to police without warrants. However, this sense of obligation is, I suggest, misplaced. Voluntarily delivering up mobile phones and passwords makes it a lot harder for subject employees to later complain about the lawfulness of the seizure, and limiting the use of the information on the phone to criminal investigations only rather than disciplinary processes.

All the above is really just subject employees exercising their legal rights. When exercising these legal rights, WA Public Servants should be polite, respectful, and firm.