Search warrants - procedures

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Search warrants - procedures

On this page:

• Requests for assistance
• Preparation of search warrants
• Execution of search warrants
• Exhibit management
• Exhibits held by Departments/Agencies
• Seizure of money
• Return and destruction/disposal of exhibits
• Attachment A Sample agency request
• Attachment B Cost sharing arrangement
• Attachment C Exhibit status notification form
  

Requests for assistance

Department/Agency requests for AFP assistance in executing search warrants should:

1. Where possible, be forwarded to the AFP from a centralised point within the referring Department/Agency;
2. In circumstances of multiple requests, be prioritised by the relevant Department/Agency prior to referring to the AFP.
3. Be provided to the relevant AFP Operations Monitoring Centre (OMC) in writing (see Attachment A - Sample Agency Request) at least 14 days before the warrant is intended to be executed. Where circumstances permit the AFP will give urgent requests priority.

The Department/Agency request should identify: the purpose of the search warrant; the reason why a search warrant is needed; the circumstances of the alleged offence/s; and the proposed timing. The Department/Agency should also nominate and provide contact details for the case officer within their Department/Agency who is responsible for the preparation of the search warrant.

Requests for AFP assistance in the execution of a search warrant will need to state that the seizure of the evidential material is wholly for the purpose of a criminal prosecution and/or related action under the Proceeds of Crime Act 2002 and not a disciplinary, administrative or civil proceeding.

On receipt of a written request the AFP will assess the request and, where possible, within 7 days advise the Department/Agency whether the request is accepted, further information is required, or the AFP is unable to assist. Urgent requests should, however, be given priority consideration. Where the request is accepted the Department/Agency will be provided with the name and contact details of the intended AFP executing officer.

In assessing whether the AFP is to accept a request from a Department/Agency for assistance in the execution of a search warrant, the following factors should be taken into account as part of the evaluation/assessment process:

1. AFP capacity/resources to provide the assistance at the time and place required;
2. The Department/Agency's clear intention to prosecute criminally;
3. The Department/Agency's capacity to have the required level of exhibit control, storage and security, and corporate governance for any seized material at a level consistent with those of the AFP and in accordance with the AFP National Guideline on Property and Exhibits (where applicable);
4. The Department/Agency's agreement to provide appropriate resources whether human, material or financial;
5. Whether the Department/Agency has used all other methods reasonably available to it, without success, in an effort to obtain evidence; and
6. In all the circumstances, whether the execution of a search warrant is the most appropriate course of action to pursue at that time.

Any AFP requests for further information or other relevant instructions must be met before the request can be considered.

The AFP executing officer should advise the nominated Department/Agency case officer of the likely timeframe for the execution of the search warrant as soon as possible.

Preparation of search warrants

The Department/Agency case officer must have attained the Certificate IV in Government (Fraud Control Investigations) in accordance with Guideline 6 of the Commonwealth Fraud Control Guidelines. The Department/Agency case officer should prepare and apply for search warrants in accordance with the current Director of Public Prosecutions (DPP) Search Warrants Manual.

The DPP should be given an opportunity to examine the search warrant information/documentation to check that there are no defects which may prejudice the potential prosecution.

The Department/Agency case officer should consult with the AFP executing officer prior to swearing the warrant. Departments/Agencies must be aware that warrants sworn without prior consultation may not be executed by the AFP. The search warrant should be obtained and all relevant pre-planning aspects of the warrant execution settled within 48 hours of the anticipated time of execution.

The AFP executing officer may request the Department/Agency to undertake further inquiries to strengthen any area of concern within the search warrant information. Issues such as multiple warrants, search of vehicles/persons and proceeds of crime/asset forfeiture provisions may need to be considered, and further advice obtained from DPP.

The AFP executing officer should determine in consultation with the Department/Agency case officer and/or the DPP whether it is appropriate or desirable for him/her to also attend before the issuing officer.

Execution of search warrants

Execution of the search warrant and the planning thereof is the sole responsibility of the nominated AFP executing officer. The AFP executing officer will at all times be responsible for the search warrant execution, seizure of evidential material/items and shall remain in control of the warrant and premises.

In situations other than where the warrant is to be executed by prearranged consent with the occupier of the premises, a minimum of two AFP officers (in addition to the Department/Agency case officer who swore the information for the warrant) should be present for the execution process.

Where possible, the role of the AFP should be limited to that of executing officer and sufficient AFP members to ensure safety and containment at the premises and not to perform the role of property officer or searchers. The AFP executing officer will determine the number of Department/Agency representatives required to execute the search warrant.

The AFP executing officer will determine whether, and if so who, should be authorised as a "Constable Assisting" [s.3C (1) (b) Crimes Act 1914] during the search warrant execution. Execution of the search warrant will be in accordance with normal AFP procedures. There is no legal requirement for "Constables Assisting" to be identified to the occupier of the premises. However, if the executing officer believes it is appropriate to identify other members of the search team, he or she should identify and announce the "Constable/s Assisting" upon execution of the warrant.

The AFP executing officer must ensure that all personnel involved in the execution process, including Department/Agency representatives, are appropriately trained and properly briefed on the task to be undertaken.

The Department/Agency case officer who swore the information for the warrant will need to be present during the search warrant execution.

Exhibit management

It is essential that continuity of possession and protection of seized material (by both the AFP and the Department/Agency concerned) is safeguarded at all times in respect to seizures made under warrant.

Whilst the AFP is ultimately responsible for all seized material, where a Department/Agency has exhibit control, storage and security capacities at a level consistent with that of the AFP and in accordance with the AFP National Guideline on Property and Exhibits (A copy of the AFP National Guideline on Property and Exhibits is available to Department/Agencies upon request), where applicable, the Department/Agency may take possession of the seized items. Any such decision will be at the discretion of the AFP executing officer.

Where a Department/Agency does not have the appropriate exhibit handling capacity, the AFP will retain possession of all seized material. All such material must be handled, stored and disposed of in accordance with the AFP National Guideline on Property and Exhibits and any other relevant legislation (in particular AFP regulations).

In the event the AFP retains possession of the seized material, the Department/Agency is responsible for advising the AFP of its status, including the need for final disposal/destruction. If the Department/Agency fails to inform the AFP of the status of seized material, the AFP may take appropriate action to deal with the material. The AFP will advise the Department/Agency in writing of its intentions regarding the seized material. If no advice is received from the Department/Agency within 28 days the seized material will be disposed of.

In the event the AFP retains possession of the seized material, the Department/Agency should provide advance notice of at least 21 days, where practicable of the seizure being required in court as evidence. The AFP will provide all relevant witness/police statements, attend court and produce the seizure by/on the due date.

Exhibits held by Departments/Agencies

In recognition of the fact that the AFP is ultimately accountable for all seized material, Departments/Agencies must acknowledge that:

1. access to the seized material is to be available to the AFP whilst in the possession of the Department/Agency; and
2. seized material held by Departments/Agencies may be subject to random physical inspection by the AFP for audit/security purposes and as part of the Quality Assurance Review (QAR) process.

The Department/Agency is responsible for ensuring that:

1. all seizures in its possession are maintained in original condition and are used solely in relation to the criminal proceedings for which they were seized and not for other purposes. They must not be released (or parts thereof) or copied outside the Department/Agency without formal approval of the AFP; and
2. continuity of possession and protection of evidential material is safeguarded from the time seizures are received into its possession until otherwise relinquished.

The Department/Agency must have written procedures detailing the handling of all seized material, including property seizure records, and the storage and disposal of exhibits. There should also be written procedures addressing the audit of the exhibit register.

The AFP National Coordinator Property and Exhibits is responsible for determining that the Department/Agency's exhibit control, storage and security capacities meet an acceptable standard and that the Department/Agency has appropriate written procedures addressing the handling and audit of exhibits.

Where the Department/Agency retains possession of seized material following the execution of a search warrant, they are to provide the relevant AFP Operations Monitoring Centre (OMC) with a comprehensive list of all items seized within 14 days of the seizure.

The Department/Agency should also provide the relevant AFP OMC with written notification of any significant change in the status of the matter for which the seizure is being held. In any event, notification of the status is to be provided on a six monthly basis unless an alternative period is agreed.

The Department/Agency must conduct further reviews of their seizures following the completion of preliminary hearings and advise the relevant AFP OMC of the status of any seized items at this time.

Seizure of money

Given that the Department/Agency will not possess the necessary security to handle or transport large amounts of money, the AFP will retain possession of all amounts of money seized. Any monies seized must be handled in accordance with section 4.2 of the AFP National Guideline on Property and Exhibits.

Return and destruction/disposal of exhibits

The final disposal of exhibits either by returning to the owner or by destruction/disposal should be conducted in accordance with the AFP National Guideline on Property and Exhibits and any other relevant legislation.

Where the Department/Agency retains possession of exhibits the Department/Agency should discuss their final disposal with the AFP executing officer prior to disposing of the exhibits.

The relevant AFP OMC should be advised in writing of the return or the destruction/disposal of exhibits within 5 working days. This notification should include a copy of any relevant receipts or statements.

Attachment A: Sample agency request

Office Manager
Australian Federal Police
...........................................
...........................................

REQUEST FOR AFP ASSISTANCE IN THE EXECUTION OF A SEARCH WARRANT
UNDER SECTION 3E CRIMES ACT 1914 (OR OTHER ACT)

The following aspects should be described or addressed in the request to the extent necessary in the circumstances:

• Department/Agency file or operation name;
• Department/Agency case officer details (name, phone/fax, location position etc);
• The reason why a search warrant is needed;
• Circumstances of the alleged offence;
• Suspects;
• Offence/s;
• The reasonable grounds for suspecting evidential material is/will be on the premises;
• Description of evidential material;
• The proposed date and time of the execution of the warrant;
• Other relevant information;
• The evidential material is required for a criminal prosecution and not for disciplinary, administrative or civil proceedings;
• Costing arrangements;
• Statement as to the Department/Agency's capacity to ensure safekeeping of the seizure in accordance with the AFP National Guideline on Property and Exhibits (where applicable) and an undertaking to return it to the AFP upon request;
• Undertaking in relation to provision of appropriate resources, including human and financial;
• Whether the Department/Agency has used all other methods reasonably available, without success, in an effort to obtain the evidential material or in circumstances where this is not appropriate the reasons why this is the case;
• Approval by the manager of an investigations unit or equivalent on behalf of Department/Agency for proposed course of action to be taken.

...........................
(Signature)

Attachment B: Cost sharing arrangement for the execution of search warrants

• Cost sharing arrangement for execution of search warrants form (PDF, 23kB)
• Cost sharing arrangement for execution of search warrants completed sample form (PDF, 23kB)

Attachment C: AFP exhibit status notification form

• Exhibit status notification form (PDF, 25kB)
• Completed exhibit status notification sample form (PDF, 30kB)