Incidental Discovery on a Fraud Warrant
At 07:10, you are an AFP officer executing a Commonwealth search warrant at a Canberra apartment. The warrant authorises entry and search for documents and electronic devices connected to alleged online investment fraud. The 31-year-old occupant is present and cooperative. While examining a laptop in the bedroom, you see a folder labelled with a filename suggesting child sexual abuse material. You open the file and see an image that appears to be a prepubescent child. The warrant does not mention child exploitation material. The occupant says the laptop belongs to his brother, who stays there sometimes, and asks whether he can leave for work. Your supervisor is 20 minutes away, and the laptop is powered on with a messaging application open. The apartment is small; no children are present, but a school bag is near the door.
1. Can you seize the laptop and continue examining it under the existing warrant? Explain your reasoning.
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Issue: The warrant is limited to investment fraud evidence. The image is outside its scope.
Law/policy: A search warrant authorises only what it says. Some Commonwealth search powers allow seizure of other evidence found in the course of a lawful search if an officer reasonably believes it is evidence of an offence, but that does not automatically authorise a new forensic examination. The safest course is to preserve the item and seek separate authority.
Decision: Stop examining the child abuse material. Do not copy, circulate, or delete it. Seize or secure the laptop under the warrant if it is also fraud evidence, or detain it briefly while you seek advice. Photograph the screen, record the file name and location, and do not open more files.
Action: Notify your supervisor and the child exploitation team. Seek a separate warrant or consent for the child abuse material. If there is imminent risk to a child, act to prevent harm. Document why you looked and why you stopped.
2. What immediate actions do you take regarding the image, the occupant, and the brother?
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Action: Preserve the laptop and keep it powered on if that preserves evidence; do not let anyone use it. Record the occupant's statement about ownership. Ask where the brother is and whether he has access to children. Do not tip off the brother. Consider whether the occupant is a suspect or a witness; caution him if needed. Make a child protection report under the Children and Young People Act 2008 (ACT) if you form the required belief. Notify the AFP child exploitation unit and your supervisor.
Why: The priority is to stop ongoing access to material and protect any child. The image may be evidence of a serious offence. The occupant's rights matter, but he is not free to destroy evidence. If he asks to leave, see the next answer.
3. The occupant asks to leave. How do you balance his liberty with the investigation?
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Issue: Police can detain for the time reasonably needed to execute a warrant, but not arbitrarily.
Options: let him leave; ask him to stay; arrest if grounds exist; apply for a warrant.
Reasoning: If he is not under arrest and there are no grounds, you cannot hold him indefinitely. But you can ask him to remain, explain that the search is continuing, and warn him not to remove or destroy evidence. If he refuses, document the time and let him go unless arrest is justified. If there are grounds to arrest for the fraud or child abuse material, arrest and caution. If not, use the warrant to secure the premises and seek a separate warrant quickly.
Action: Offer to call his work if appropriate. Record his statement and departure. Preserve the laptop. Do not make threats. The investigation can continue with the evidence already lawfully obtained.