Criminal Investigation Act 2006

In this section —

in relation to a person who is in the custody of a police officer — any police officer;

in relation to a person who is in the custody of a public officer — any public officer who has the same functions as that public officer;

that could be used to endanger the person in possession of the thing or any other person; or

that could be used to assist a person to escape from lawful custody; or

that could adversely affect the security, good order or management of a place where a person is being kept in custody.

A person is in custody for the purposes of this section if —

the person is under arrest, whether under this Act or under another written law, or is otherwise in the lawful custody of an officer; or

the person, having been required to do so by a police officer acting under the Road Traffic Act 1974 section 66, 66B, 66D or 66E, is accompanying a police officer to, or is waiting at, a police station or other place; or

the person, having been required to do so by a police officer acting under the Western Australian Marine Act 1982 section 75G, is accompanying a police officer to, or is waiting at, a place.

the person is complying with an order under the Restraining Orders Act 1997 section 62F(1)(c) or (2)(a).

A person is not in custody for the purposes of this section if —

the person is in custody because he or she is a child in the CEO’s care, as that term is defined by the Children and Community Services Act 2004 section 30, and not for any other reason; or

the person is a person in custody, as that term is defined by the Court Security and Custodial Services Act 1999 section 3, and under that Act the CEO (as that term is defined in that Act) is responsible for the person’s security, control, safety, care and welfare.

If a person is in custody, an authorised officer may search the person for a security risk item.

For the purpose of searching a person under subsection (4) an authorised officer may, as often as is reasonably necessary —

subject to Part 8 Division 3, do a basic search or a strip search of the person;

if authorised to do so under Part 9 Division 5, do an internal forensic procedure on the person in accordance with Part 9 Division 6.

If an authorised officer, exercising a power in subsection (4) on a person, finds a thing that the officer reasonably suspects is a security risk item, then —

if the item is not attached physically to the person — the officer may seize it;

if the item is attached physically to the person, but not to his or her private parts, or is in the person’s mouth — the officer may remove it but in doing so must comply with Part 9 Division 6 as if doing a non‑intimate forensic procedure on the person;

if the item is attached physically to the person’s private parts — the officer must not remove it except by means of an intimate forensic procedure authorised and conducted in accordance with Part 9;

if the item is in an orifice (other than the mouth) of the person, the officer must not remove it except by means of an internal forensic procedure authorised and conducted in accordance with Part 9.

For the purposes of subsections (5)(b) and (6)(c) and (d), Part 9, with any necessary changes, applies as if —

a security risk item were a thing that is relevant to an offence; and

searching for and removing a security risk item were a purpose permitted by section 77.

If an authorised officer, exercising a power in subsection (4) on a person, finds a thing that is not a security risk item but that is a thing relevant to an offence, then —

if the thing is not attached physically to the person, the officer may seize it; but

in any other case, the officer must not remove the thing, or take a sample or impression of it, or take a swab or use other means to detect it, except by means of a forensic procedure authorised and conducted in accordance with Part 9.

If under subsection (6) a security risk item is removed, it may be seized.

If under this section an authorised officer seizes a security risk item from a person, the officer must make it available for collection by the person when he or she is released from custody, unless it may be lawfully seized and retained under another provision of this Act or under another written law.

The Criminal and Found Property Disposal Act 2006 applies to and in relation to a thing so seized that is made available to but not collected by the person.

If under subsection (8) an authorised officer removes a thing that is not a security risk item but that is a thing relevant to an offence from a person, the officer —

may, subject to section 146, seize the thing; and

whether or not the officer seizes it, may do a forensic examination on it.