The dog sat down next to you: strip searches, drug detection dogs and when a NSW police search is actually unlawful
You were in a queue at a festival, or walking through a station, and a dog handler stopped beside you. The dog sat. You were taken to a tent or a side room and told to remove your clothing, lift your arms, turn around, squat. Whatever the officers found or did not find, the experience left you with the same question everybody asks afterwards: were they even allowed to do that?
In a very large number of cases in NSW, the answer has been no. That is not an opinion offered by defence lawyers – it is the finding of the Supreme Court, and it has implications for anyone charged following a search of this kind.
The two different powers people confuse
An ordinary personal search and a strip search are governed by different provisions with different thresholds, and conflating them is where most of the trouble starts.
The general power is in section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002), which allows an officer to stop, search and detain a person without a warrant where the officer suspects on reasonable grounds that the person has something stolen or unlawfully obtained, something used or intended to be used in an offence, a dangerous article, or a prohibited drug or plant.
A strip search requires more. Under section 31), an officer may carry out a strip search only where the officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search – and, where the search is conducted somewhere other than a police station or place of detention, that the seriousness and urgency of the circumstances make the strip search necessary.
That second limb is the whole ballgame. It is not enough that a search is lawful. It is not enough that a strip search might turn something up. The circumstances must be serious and urgent enough to make it necessary. As the Law Enforcement Conduct Commission, the police oversight body, sets out in its own material on the subject), sections 31 to 33 govern when and how strip searches may be conducted.
What the Supreme Court found
On 30 September 2025, the Supreme Court of NSW delivered judgment in proceedings brought by a woman strip searched at a music festival. Justice Yehia found the search unlawful, and made two findings that matter well beyond the individual case.
The first is that a mere indication by a drug detection dog, or a mere suspicion of minor drug possession, is not sufficient to justify a strip search. The second is that the failures in that case were not isolated – the Court characterised them as the product of a deficiency in the training, education and monitoring of officers in the exercise of strip search powers, amounting to a flagrant disregard of the plaintiff’s rights. Damages were awarded, including aggravated damages, and the judgment galvanised a broader class action in which thousands of people have registered.
For a person facing a drug charge, the significance is direct. If the only basis for the strip search was a dog indication or a suspicion of simple possession, the search was very likely unlawful – and evidence obtained through an unlawful search is liable to be excluded.
How drug detection dogs actually work in law
Drug detection dog operations are governed by Part 11 of LEPRA), which authorises general drug detection using dogs in defined circumstances, including at certain public places and events, and in some cases under warrant.
Two things follow that people are rarely told. First, a dog indication is not proof of anything. Dogs respond to residual odour, which may come from contact with a person who has used drugs, from a jacket borrowed from a friend, from a car, or from drugs consumed days earlier and no longer in anyone’s possession. Second, the legal consequence of an indication is limited: it may contribute to reasonable suspicion supporting a general search under section 21. It does not, on its own, authorise a strip search.
The gap between those two propositions is where a great many NSW prosecutions have been built.
The safeguards that are routinely breached
Sections 32 and 33 are the provisions defence lawyers examine line by line, because compliance is often poor.
Section 32 requires that a search be conducted in a way that preserves privacy and dignity as far as reasonably practicable, that the least invasive kind of search practicable in the circumstances is used, and that a person is not searched by an officer of the opposite sex. It requires that the person be informed of the reason for the search, and that a search of a person’s genital area or breasts occurs only if the officer suspects on reasonable grounds it is necessary. The detail is set out in section 32.
Section 33 goes further for strip searches specifically. It requires the search be conducted in a private area, not in the presence or view of a person of the opposite sex, and not in the presence of anyone whose presence is not necessary. It prohibits the search of a person under 10. For a person aged between 10 and 18, or a person with impaired intellectual functioning, the search must be conducted in the presence of a parent, guardian or other acceptable person unless an exception applies. It prohibits searching of body cavities and examination by touch, and requires that the person not be left partly clothed for longer than necessary. The provisions are set out in section 33.
Read that list against what actually happens at a festival gate – a partition, officers of both sexes nearby, a queue outside, a teenager alone – and the number of potential breaches becomes obvious.
What this means for your charge
Where a search was unlawful, the evidence obtained is improperly or illegally obtained evidence, and section 138 of the Evidence Act applies. The court must not admit it unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that way.
That is a balancing exercise, not an automatic exclusion, and the factors include the probative value of the evidence, the importance of the evidence in the proceedings, the nature of the offence, the gravity of the impropriety, whether it was deliberate or reckless, and whether it contravened a right recognised by the International Covenant on Civil and Political Rights.
The practical point is this: the more serious the breach and the less serious the offence, the stronger the exclusion argument. A gross breach of the strip search safeguards producing a small quantity of a drug for personal use is close to the paradigm case. Judicial findings of systemic training deficiencies also bear directly on whether an impropriety was reckless rather than inadvertent.
Where else the case can be attacked
Exclusion is not the only avenue. Even where evidence is admitted, the prosecution must still prove possession, which requires knowledge and control. Where a substance was in a shared bag, a borrowed jacket, a group’s belongings or a car with several occupants, that is genuinely contestable – the analysis is the same one we set out in our article on how police prove knowledge and control in drug possession cases.
Quantity also matters enormously. Where the amount exceeds the traffickable threshold, deemed supply is engaged and the maximum penalty moves from two years to fifteen, as we explain in our article on the line between having drugs and being a drug supplier. Establishing that a quantity was for personal use is often the most valuable work in the matter.
At the lower end, diversion may be available rather than a court outcome at all – our article on the Early Drug Diversion Initiative and when court is still the better option sets out how that operates. And where charges are ultimately withdrawn or dismissed, costs may be recoverable, as our guide to costs in NSW criminal cases explains.
What to do during and after a search
Do not physically resist. A search you believe is unlawful is still a search you should not obstruct, because resisting converts a defensible position into a resist or hinder charge captured on video. The place to challenge lawfulness is a courtroom.
Do say, clearly and calmly, that you do not consent to the search. Consent is a separate lawful basis, and an officer who asks whether you mind is inviting you to supply one. Ask for the officer’s name, rank and station, which you are entitled to. Ask what the search is for. Note whether a dog indicated, where you were taken, who was present, whether anyone of the opposite sex was there, and whether you were told why.
Do not answer questions about what you have or where you have been. That is not obstruction, it is the right to silence, and how it actually works is set out in our article on the reality of the right to silence in NSW. What you must avoid is giving a false account, which creates its own offence – the distinction is covered in our article on false information and obstruction charges.
Write everything down the same day. Times, locations, officer descriptions, exact words. Body-worn video exists and should be subpoenaed early, but memory fades much faster than footage.
The bigger enforcement picture
Drug offences remain a substantial component of NSW Local Court volume, and BOCSAR tracks the trends quarterly in its recorded crime statistics. The overwhelming majority of matters generated by dog operations are possession charges involving small quantities – which is precisely why the lawfulness of the search so often determines the outcome, and why so many of these matters should never have produced a charge at all.
Contact Us
If you have been charged after a strip search or a drug dog operation, do not assume the case is unwinnable because something was found. The Supreme Court has now made clear that a dog indication and a suspicion of minor possession do not authorise a strip search, and that the failures in this area have been systemic rather than isolated.
At National Criminal Lawyers, we defend drug charges arising from festival, station and street searches across NSW. We know what the safeguards in sections 31 to 33 actually require, what to subpoena, and how to run an exclusion application properly.
Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.
