Search warrants - procedures

Requests for assistance

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 agency
  2. in circumstances of multiple requests, be prioritised by the agency before being referred to the AFP
  3. be provided to the relevant AFP Operations Monitoring Centre (OMC) at least 14 days before the warrant is intended to be executed, although where circumstances permit the AFP will give urgent requests priority

The 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 agency should also nominate and provide contact details for a case officer within the agency who is responsible for preparing 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 advise the agency if it has been accepted, if further information is required, or that the AFP is unable to assist (for more information read referring matters to the AFP). Where possible, the AFP will give priority consideration to urgent requests. When a request is accepted the AFP will provide the agency with the name and contact details of the intended AFP executing officer.

In assessing whether the AFP will accept a request from an agency for assistance in the execution of a search warrant, the following factors may 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 agency's clear intention to undertake a criminal prosecution
  3. the agency's capacity to comply with the Australian Government Investigation Standards (AGIS), particularly in relation to agency investigator qualifications, exhibit control, storage, security and disposal procedures.
  4. the agency's agreement to provide appropriate resources whether human, material or financial.
  5. whether the agency has already used all other methods reasonably available to it, without success, in an effort to obtain evidence.
  6. in all the circumstances, whether the execution of a search warrant is the most appropriate course of action to pursue at the time.

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

Preparation of search warrants

The agency case officer will hold a Certificate IV in Government (Fraud Control Investigations) in accordance with the Commonwealth Fraud Control Guidelines.

The agency case officer should prepare and apply for the search warrants in accordance with the current Director of Public Prosecutions (DPP) Search Warrants Manual.

The agency case officer should consult with the AFP executing officer prior to obtaining the warrant. Warrants obtained without prior consultation may not be executed by the AFP.

The search warrant should be obtained and all relevant planning aspects of the warrant execution settled 48 hours before the anticipated time of execution.

The AFP executing officer may request the agency to make further inquiries if there are concerns about the adequacy of information contained within the search warrant. Further advice may need to be sought from the DPP in relation to issues such as multiple warrants, the search of vehicles and individuals, and proceeds of crime/asset forfeiture provisions.

In consultation with the agency case officer and/or the DPP, the AFP executing officer will determine whether it is appropriate or desirable for them to be in attendance when the warrant is issued.

Execution of search warrants

The planning and execution of the search warrant 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 control of the warrant and premises.

Two AFP officers should be present for the execution process unless the occupier of the premises has provided prearranged consent for the warrant to be executed.

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 agency representatives required to execute the search warrant.

The AFP Executing Officer will determine who will be authorized as a Constable Assisting (the Act) for the search warrant. 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 they should do so.

The AFP Executing Officer must ensure that all personnel involved in the execution process, including agency representatives, are appropriately trained and properly briefed on the task to be undertaken.

The agency case officer who swore the affidavit for the warrant must be present during the search warrant execution.

Exhibit management

It is essential that continuity of possession and protection of seized material is safeguarded at all times in respect to seizures made under warrant.

Upon completion of the execution of a search warrant, the AFP will transfer possession of the seized items to the agency in accordance with section 3ZQU of the Act. The AFP will generally retain currency, firearms, drugs or hazardous items. Upon transfer of possession, the agency is legally responsible for the control, storage, security and disposal of the seized items in accordance with AGIS and any agency handling procedures.

Exhibits held by agencies

The agency is responsible for ensuring that all seized material in its possession is maintained in original condition and used for the purposes of criminal proceedings or any other lawful purpose set out in section 3ZQU of the Act.

In accordance with AGIS, the agency must have a nominated Exhibit Registrar and 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 registry.

In exceptional circumstances, the agency can request the AFP retain possession of the seized material. If this occurs, the 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.

Return and destruction/disposal of exhibits

Where the agency has retained possession of seized material, the agency is responsible for the final disposal of the material in accordance with any court order, relevant legislation and agency exhibit handling guidelines. The AFP Commissioner has delegated Commonwealth Officers performing the role of agency Exhibit Registrars the authority to dispose of property in accordance with section 3ZQX of the Act. While the agency may seek advice from the AFP in relation to disposal in relation to complex matters, there is no requirement for the agency to notify or consult the AFP in relation to routine disposals.

Where the AFP has retained possession of seized material, the AFP is responsible for the final disposal of the material. The AFP will consult with the agency where the disposal may raise contentious issues or require disposal consents from parties who may have interests in the property.

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