#8521 - Police Entry And Search Of Premises - Litigation

5 Police Entry Search Seizure of Premises 1

A Was there Power to enter premises ? 1

(i) Implied license? 2

(ii) power to enter if breach of peace, or imminent danger/ actual physical injury S 9 3

(iii) reasonable grounds to believe person to be arrested/detained is on premises s 10 5

B Power to search premises: can search for person s 10(3), LEPRA 9

CB: Plenty v Dillon 9

C Power to detain articles when lawfully in premises s 22 LEPRA and in vehicles s 36 11

D Common law search and seizure powers without arrest: Laurens v Willers 13

Appendix: LEPRA ss 9 and 10 15

Appendix: CB: Merritt (caravan entry without announcement) 16

Law

Unless police have warrant which allows them to enter specified premises, or unless there is an implied license to enter someone’s house or business, a PO can only enter a person’s property under a statutory power such as ss 9 or 10 LEPRA.

Overview –

the person who enters land of another must justify that entry by showing either that entry was with consent, or had lawful authority.
Either common law or statutory power to enter?
Authority to enter land may be revoked? If revoked, then must leave as soon as is reasonably practicable.

ss 9 and 10 LEPRA: Police entry and search of premises

Also implied licence to enter: Halliday v Nevill (first class)

In exercising their powers under ss 9 or 10 the police must also comply with s 201 (safeguards relating to power) and ss 230 and 231 LEPRA.

Law

Issue: Police went onto certain land for a certain purpose. Eg. If police tried to arrest a person on a driveway of another person, and then the accused broke away from the police, did the accused escape from lawful custody? If the police were trespassers then it would not have been lawful custody.

Whether occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked? Halliday v Nevill; Ibbett

Relevant facts:

Just up the driveway? The path up to the house is held out as the bridge between public and private dwelling upon which a passer by may go for a legitimate purpose that in itself involves no interference with the occupier’s possession, nor injury to the occupier, guests or their property: Halliday
Any locks or signs? If door is locked probably no implied license. If path or driveway is left unobstructed and entrance ate unlocked and no sign forbidding entry by particular visitors then law will imply license in favor of anyone to go up to the house for purpose of lawful communication or delivery to any person in the house.
- Wouldn’t be trespass to go and retrieve something that had blown over there: Halliday
- Yes trespass No licence in Ibbett because police came under a garage door and stayed in their house despite being told to leave: - any licence given was removed -

Law	Circumstance: police has entered premises is an emergency.
Entry in emergencies: s 9.	Rule: In emergencies: two ways a PO can enter under s 10: A police officer may enter premises if the police officer believes on reasonable grounds that: Breach of peace: a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace: s 9(1)(a) Significant physical injury: a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person: s 9(1) LEPRA. Scope of power limited to what is reasonably necessary: (2) A police officer who enters premises under this section is to remain on the premises only as long as is reasonably necessary in the circumstances: s 9(2) LEPRA What is a Breach of the Peace? Test of harm/fear: Breach of the peace “occurs whenever harm is actually done or is likely to be a done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, affray, riot unlawful assembly or other disturbance” R v Howell; Kuru Power to enter to prevent a breach of the peace doesn’t extent to investigating whether there has been a breach of the peace or determining whether one is threatened: Kuru In Kuru, at time POs went to the flat there was no continuing breach of the peace and nothing in the evidence suggested that but for the POs not leaving the flat when asked to do so, that any further breach was threatened let alone imminent. Perhaps power to enter when thought that a breach had occurred but once information provided where the wife was, could have called to ask the wife, if unable to ascertain her location then get search warrant via telephone: legg on Kuru Breach of the peace? Kuru v State of NSW In Kuru, police were called to a violent domestic fight requiring available officers as quickly as possible. 6 POs went. The wife had left by the time they got there, and when appellant found the cops gave them permission to look around but then asked the police to leave the flat, police asked for more information about wife’s whereabouts and appellant gave some information and then asked them to leave several times. Eventually there was an altercation and the police punched and sprayed him with capsicum spray and handcuffed him, taken to police station in his boxers and released from custody some hours later. Issue: POs have power to enter premises to prevent a breach of the peace - (yes, POs have power to enter and remain on private premises when they have reasonable grounds for believing that an offence is imminent or is likely to be committed / or to prevent a breach of the peace) however this doesn’t extend to entry for purposes of investigating whether there has been a breach of the peace or determining whether one is threatened. Sufficient to note that POs were bound to keep the peace but at the time when they went to the flat there was no continuing breach of the peace and nothing in the evidence suggested that but for the POs not leaving the flat when asked to do so, that any further breach was threatened let alone imminent. In NSWCCA: majority held that despite appellant’s withdrawal of permission for police to remain in his flat PO were not trespassers when A first made physical contact with officers. HCA overruled this, neither statutory nor common law justification for the police remaining on the appellant’s premises.

Entry in emergencies: s 9.

Rule: In emergencies: two ways a PO can enter under s 10: A police officer may enter premises if the police officer believes on reasonable grounds that:

Breach of peace: a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace: s 9(1)(a)
Significant physical injury: a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person: s 9(1) LEPRA.

Scope of power limited to what is reasonably necessary: (2) A police officer who enters premises under this section is to remain on the premises only as long as is reasonably necessary in the circumstances: s 9(2) LEPRA

What is a Breach of the Peace?

Test of harm/fear: Breach of the peace “occurs whenever harm is actually done or is likely to be a done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, affray, riot unlawful assembly or other disturbance” R v Howell; Kuru
Power to enter to prevent a breach of the peace doesn’t extent to investigating whether there has been a breach of the peace or determining whether one is threatened: Kuru
- In Kuru, at time POs went to the flat there was no continuing breach of the peace and nothing in the evidence suggested that but for the POs not leaving the flat when asked to do so, that any further breach was threatened let alone imminent.
- Perhaps power to enter when thought that a breach had occurred but once information provided where the wife was, could have called to ask the wife, if unable to ascertain her location then get search warrant via telephone: legg on Kuru

Breach of the peace? Kuru v State of NSW

In Kuru, police were called to a violent domestic fight requiring available officers as quickly as possible. 6 POs went. The wife had left by the time they got there, and when appellant found the cops gave them permission to look around but then asked the police to leave the flat, police asked for more information about wife’s whereabouts and appellant gave some information and then asked them to leave several times. Eventually there was an altercation and the police punched and sprayed him with capsicum spray and handcuffed him, taken to police station in his boxers and released from custody some hours later. Issue: POs have power to enter premises to prevent a breach of the peace - (yes, POs have power to enter and remain on private premises when they have reasonable grounds for believing that an offence is imminent or is likely to be committed / or to prevent a breach of the peace) however this doesn’t extend to entry for purposes of investigating whether there has been a breach of the peace or determining whether one is threatened. Sufficient to note that POs were bound to keep the peace but at the time when they went to the flat there was no continuing breach of the peace and nothing in the evidence suggested that but for the POs not leaving the flat when asked to do so, that any further breach was threatened let alone imminent.
In NSWCCA: majority held that despite appellant’s withdrawal of permission for police to remain in his flat PO were not trespassers when A first made physical contact with officers. HCA overruled this, neither statutory nor common law justification for the police remaining on the appellant’s premises.

Three threshold requirements for police to enter under s 10 LEPRA:	Rule: A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant: s 10(1) LEPRA. However PO cannot enter premises to detain a person under an Act if they haven’t complied with any statutory requirement imposed on the police officer under that Act for entry to premises: s 10(4) LEPRA. Requirements to exercising this power under s 10(1) must have power to arrest or detain a person ( if no warrant to arrest person, then s 99(1) or (2) LEPRA etc) they must believe on reasonable grounds that the person in question is on the premises (see George v Rockett in Class 7) they must comply with any requirements under LEPRA before entering the premises (announce before entry s 201) Comply with requirement under s 230-1 to use reasonably necessary force What they do when inside is within scope of power to enter: (can search for person: s 10(3)) Scope of s 10 LEPRA: discussed in Merritt and Nassif
(i) power to arrest or detain	Police must have power to arrest or detain a person ( if no warrant to arrest person, then s 99(1) or (2) LEPRA etc)
(ii) must believe on reasonable grounds	(ii) they must believe on reasonable grounds that the person in question to be arrested or detained is on the premises: s 10(2) LEPRA; Merritt; Lippl; George v Rockett (see George v Rockett in Class 7) Reasonable grounds to believe a person was in a caravan where he lived in Merritt because he lived there. Police officer under s 10 may search premises for person: s 10(3) Note at CL, no power to enter a house forcibly because it was believed that a fugitive may be in the house – a belief that the fugitive was in the house was required: Lippl v Haines
(iii) complies with requirements before entry: s 201, and Lippl v Haines announcement	The third issue is whether the PO complied with statutory requirements imposed by s 201 LEPRA in entering premises (ss 10(4)); s 201 applies to the power to enter private premises according to 201(3)(c) LEPRA). In order for the police to have lawfully exercised the power to enter they must: provide evidence of being a police officer (s 201(1)(a): Nassif), name and place of duty (s 201(1)(b)), and reason for exercise of power (s 201(1)(c) LEPRA; Nassif), which involves an announcement before entry, and likely...

Three threshold requirements for police to enter under s 10 LEPRA:

Rule: A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant: s 10(1) LEPRA. However PO cannot enter premises to detain a person under an Act if they haven’t complied with any statutory requirement imposed on the police officer under that Act for entry to premises: s 10(4) LEPRA.

Requirements to exercising this power under s 10(1)

must have power to arrest or detain a person ( if no warrant to arrest person, then s 99(1) or (2) LEPRA etc)
they must believe on reasonable grounds that the person in question is on the premises (see George v Rockett in Class 7)
they must comply with any requirements under LEPRA before entering the premises (announce before entry s 201)
Comply with requirement under s 230-1 to use reasonably necessary force
What they do when inside is within scope of power to enter: (can search for person: s 10(3))

Scope of s 10 LEPRA: discussed in Merritt and Nassif

(i) power to arrest or detain

Police must have power to arrest or detain a person ( if no warrant to arrest person, then s 99(1) or (2) LEPRA etc)

(ii) must believe on reasonable grounds

(ii) they must believe on reasonable grounds that the person in question to be arrested or detained is on the premises: s 10(2) LEPRA; Merritt; Lippl; George v Rockett (see George v Rockett in Class 7)

Reasonable grounds to believe a person was in a caravan where he lived in Merritt because he lived there.
Police officer under s 10 may search premises for person: s 10(3)

Note at CL, no power to enter a house forcibly because it was believed that a fugitive may be in the house – a belief that the fugitive was in the house was required: Lippl v Haines

(iii) complies with requirements before entry: s 201, and Lippl v Haines announcement

The third issue is whether the PO complied with statutory requirements imposed by s 201 LEPRA in entering premises (ss 10(4)); s 201 applies to the power to enter private premises according to 201(3)(c) LEPRA).

In order for the police to have lawfully exercised the power to enter they must:

provide evidence of being a police officer (s 201(1)(a): Nassif),
name and place of duty (s 201(1)(b)), and
reason for exercise of power (s 201(1)(c) LEPRA; Nassif), which involves an announcement before entry, and likely...

#8521 - Police Entry And Search Of Premises - Litigation - Criminal Procedure Rules

About Oxbridge

More Litigation Criminal Procedure Rules Samples