Controlled Substances Abuse Warrant versus General Search Warrant - Essay Example

Controlled Substances Abuse Warrant versus General Search Warrant Student’s name Institution Instructor Introduction South Australia is one of the regions with a high rate of abuse of controlled substance abuse hence the need for a range of policies and frameworks aimed at curbing or controlling this. Given that there are different legislative frameworks put in place to deal with offences, the police that are not well versed in the law may find it hard to determine an appropriate framework to adopt. In many instances, the police will resort to their own devices such as colleague and personal experiences, case law and orders received from superiors. One of the most important dilemmas facing law enforcement in South Australia with regard to controlled substance enforcement is whether to make use of the Controlled Substances ct Warrant or General Search Warrant under the Summary Offences Act. For law enforcement officers that don’t have a good grasp of the law relative to other enforcement officers such as judicial officers, many police officers will apply the wrong legislative framework which may result in injections which makes their work less effective. As such it is critical that the South Australian Police have to have a good grasp of the aspects of each warrant and when to use it. General Search Warrant The Summary of Offences Act of 1953 offers a range of offences which are applicable in the Australian Commonwealth. Section 67 of the Act deals with police powers of entry and search. A general search warrant is the most common means afforded SAPOL in enabling detective work in terms of search and entry of buildings, premises, vessels, or vehicles in which there is reasonable belief that it contains stolen or illicit goods, controlled substances, or any other reason which the officers may deem as evidence of intent to commit crime or has been used in the commission of crime. The Commissioner of police may a general search warrant to a police officer which is valid for up to six months Summary of Offences Act 1953 ss 67(1)(2)(3). An important aspect of the search warrant is the stipulation that the police officer named in the warrant must be present along with persons assisting in enforcing the warrant in search and entry of premises. The officer has the authority to break open storage containers and enclosed spaces he has reasonable cause to believe may contain evidence of an offence, stolen goods or items believed to be intended for commission of offences Summary of Offences Act 1953 ss 67(4)(b)(i)(ii)(iii). The officer also has the authority to seize items deemed to answer to the aforementioned description to assist in investigations. The General Search Warrant is a very comprehensive authority which gives the police officer sweeping powers over search and entry. The General Search warrant offers the police officer a lot of discretion in its execution and as such may be a useful tool in enforcement policies of drug control. The General Search warrant asserts that the officer named in the warrant must be present during the enforcement of the warrant. In R v Ellul it was held that in the instance in which both GSW and CSA warrants are issued the police officer has the discretion to decide on which to apply (R vs Cavallaro, 2011). In the instance of simple drug offences such as possession of Cannabis for private use the GSW the use of GSW is deemed excessive. The GSW offers more authority to assistants in allowing assistant to assist the officer whose name is on the warrant in breaking, entering and search premises under his direction at any time if there is reasonable cause of suspicion of commission of offences s 67 SOA. A GSW requires the filling of a PD 23 by the officer requesting it and the reasons for the application. An advantage of this process is that the PD 23 form requires an oath of affirmation from a colleague before it is used and hence it is not easily misused. The Local Service Area manager is required to give advise the applicant to the requirement of s52 (5)(1). The requirement is that the issuing officer ought not to take lightly the issuance of the GSW and as such if there is doubt the GSW will not be issued until further compelling material is furnished by the applicant. The procedure for issuance of the GSW states that a police officer who is being issued with the warrant for the first time or who has not held one for two years has to complete an online training test while holders must also have to complete the test every two years. The warrant issued will normally be active for six months which means that the officer can act when he has reasonable cause without going back to obtain permission from the commissioner. This is advantageous in that a process of application may take time and evidence may be lost in the process making the warrant useless after issuance. Officers holding GSW who transfer, goes on leave, transfers to a division not requiring the use of such warrants or separates from SAPOL through going on special leave without pay must return their active warrants to the LSA/branch manager. GSWs are disadvantageous in fighting against controlled substances since they are not issued easily. They are therefore held by very few people and as such for the most part are committed to o0ther offences such as theft, robbery, murder while the controlled substances officers have to rely on CSA. Since they are hard to obtain they may become ineffective and result in late response to controlled substance suspicion. Under the South Australia Police General Orders for Search Warrants the person holding a GSW has to obtain authorization from the Police Commissioner or a magistrate before the warrant is executed (General Order 261/01, Search Warrants). This measure ensures that the GSW orders are not abused on non issues. As such while the police officer acts on their discretion their action is regulated by the Commissioner or a magistrate (General Order 261/01, Search Warrants). Controlled Substances Act Warrant According to s 52 of the Controlled Substances Act of 1984 a law enforcement officer may obtain a warrant upon completing an application which may be authorized by Justice of the Peace, officer of police, special magistrate, affirmation or a sworn oath (General Order 261/01, Search Warrants). Even as the Controlled Substances Act is more specialized than the GSW , it has the same legal force and authority of entering, searching and seizing of items which the officer believes may assist in investigation s 52 (d)(i). Unlike the GSW the CSA other people other than policemen may be authorized to exercise the authority of the Act. Under the act a police officer or any other person appointed by the minister through express written permission may exercise authority of the act. However a person who is not a police officer that is appointed by the minister must have a certificate of identification which must be produced for inspection on demand during the process of exercising of the warrant. The aspect of the CSA in allowing for any person appointed by the minister to exercise the authority of the CSA is advantageous in that it increases the number of people available for enforcement. The CSA unlike the GSW does not require training on its aspects before one can enforce it. As such an ordinary police office can obtain a CSA simply by applying for it from the aforementioned persons on the basis of reasonable suspicion s 52 Controlled Substances Act 1984). However just like the GSW the issuing officer has to be convinced that there exist reasonable grounds for the issuance of a CSA warrant. This however is also a disadvantage in that while it allows for more people to enforce the CSA, there is not a lot of safeguards and hence the warrant may be abused with suspicions not founded on strong conviction of commission of crime. The CSA is advantageous over the GSW in that more than one warrant may be issued since there are different authorities which may issue it. This allows for more effective enforcement of antidrug efforts since there may be more persons working on the same case which will result in more information and ideas. The degree of particularity needed to satisfy the issuing officer is both an advantage and a disadvantage in fighting of drugs (Justice Williams in R v A No. SCCRM-99-182 (2000) SASC 51 conducts an overview of s52 of the CSA). The issuing officer has to be satisfied that there are reasonable grounds to believe a crime is about to be committed and that a warrant is needed to prevent this. The bar of proof is set very low with even hearsay or simple suspicion being allowed as proof. He states that there is an obligation on the issuing officer to be satisfied of the two matters, part a and part b. That is, (a) that there are reasonable grounds for suspecting that an offence against this Act has been, is being or about to be committed and (b) that a warrant is reasonably required in the circumstances. In Queensland Bacon Pty Ltd V Reeves 1966 it was held that ‘A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust amounting to ‘a slight opinion but without sufficient evidence’, as Chambers Dictionary expresses it. Consequently a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence’ The CSA places the burden of proof of validity of a warrant on the defendant rather than the officer. If a warrant is compliant with the requirement of s 52 for the most part it will stand up to any challenge of validity. In the instance of a challenge being lodged the burden of proof of invalidity depends on the balance of probabilities. However if it can be proven to be in any way unreasonable or fraudulent it may be deemed invalid. However since the defendant has no right to demand knowledge on which the warrant is being executed, the warrant is more effective (R V IRC ex parte Rossminster per Lord Wilberforce at 999). Lander J in R V A No, SCCRM-99-182 (2000) SASC 51 stated ‘As the defendant will carry the onus of proof, counsel should not be allowed to mount a fishing expedition. It will only be the exceptional case where material is available to the defence to pursue a collateral challenge to a warrant which is valid on its face. Conclusion SAPOL does not specify which warrant ought to be used in a given situation leaving it to an officer’s discretion. However, both warrants have their advantages and disadvantages which would make it easier to employ each according to the circumstances of each case. While both have the same power of search and entry the CSA is more specific and thus more effective in fighting drugs. Nevertheless since warrants are usually subject to challenges of validity in court, the CSA may be more suitable to the war against drugs since it does not require a lot of evidence to execute. This makes it easier to act fast before evidence is destroyed. That it is also taken at face value makes it less vulnerable to a voir dire suit. References Controlled Substances Act 1984 http://www.legislation.sa.gov.au/LZ/C/A/CONTROLLED%20SUBSTANCES%20ACT%201984/CURRENT/1984.52.UN.PDF Summary Offences Act 1953 http://www.legislation.sa.gov.au/LZ/C/A/SUMMARY%20OFFENCES%20ACT%201953/CURRENT/1953.55.UN.PDF R vs Paul Charles Ellul (2001) R vs Cavallaro, 2011 General Order 261/01, Search Warrants Queensland Bacon Pty Ltd V Reeves 1966 R V IRC ex parte Rossminster per Lord Wilberforce at 999 R V A No, SCCRM-99-182 (2000) SASC 51 Read More