There has been an increasing number of stops and search by the police each year, and the quota for personal search and strip searches keeps increasing.

One question people ask is that, on what ground can the police legally search me or my vehicle?

Scenario one: You were in the street, minding your own business. Two police officers walked past you and decided to search you on the spot.

Scenario two: You were driving down the road in your vehicle without committing any traffic offences. Police pulled you over and decided to search you and your vehicle.

Can the police do it? And what is your right?

THE LAW

The law on Police Search Powers are vested in Part 4 (Search and seizure powers without warrant) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).

When conducting a search, police have to use their power in compliance with LEPRA.  Section 21 of LEPRA sets out that, a police officer may without a warrant, stop, search and detain you, and anything in your possession, or under the control of you, if the police officer suspects on reasonable grounds that –

  1. You have anything stolen or otherwise unlawfully obtained;
  2. You have anything used or intended to be used in or in connection with the commission of an offence;
  3. You have a dangerous article (firearm/toxic chemical/explosive) that is being or was used in or in connection with the commission of an offence; and
  4. You have prohibited plants or prohibited drugs in your possession.

Under Section 21A of LEPRA, if the police suspect on reasonable grounds that you have a thing mentioned above concealed in your mouth or hair, they have a right to require you –

  1. to open your mouth to enable it to be searched; or
  2. to shake, or otherwise move, your hair.

However, the police cannot forcibly open a person’s mouth under LEPRA, and you cannot without reasonable excuse, fail or refuse to comply with a requirement made by a police officer in accordance with this section. If you do, a maximum penalty of 5 penalty units can be given, which is an equivalent of $ 550.

RULES OF CONDUCTING A SEARCH

Section 30 of LEPRA allow the police to:

  • Quickly run his or hands over your outer clothing;
  • Require you to remove his or her coat or jacket or similar articles of clothing and any gloves, shoes, socks and hat (but not all of the person’s clothes except if it is a strip search);
  • Examine anything in your possession;
  • Pass an electronic metal detection device over or in close proximity to your outer clothing or anything removed from you; and
  • Do any other thing authorized by the Act for the purpose of the search.

CAN THE POLICE CONFISCATE ITEMS THEY FOUND ON ME?

If the police suspect on reasonable ground that the dangerous article is being or was used in, or in connection with the commission of an offence. They will have a right to detain and seize the above mentioned dangerous article found from their search,

CONSENT – ITS IMPORTANT

The first and foremost thing to remember is that the officer who is going to strip search you need your consent before carrying out the search. And provide evidence that the ‘police officer’ is, in fact, a police officer (not a public impersonating police), as well as their names and their place of duty. If police strip-searched you without your consent, actions could be brought against the police officer for assault.

WHERE CAN I BE SEARCHED?

Section 32 of LEPRA regarding the preservation of private and dignity provided that:

  1. When a police officer searches you, police must, as far as is reasonably practicable in the circumstances, comply with this section;
  2. The police officer must ask for your co-operation;
  3. The police officer must inform you on whether you will be required to remove clothing during the search, and why it is necessary to remove the clothing;
  4. The police officer must conduct the search in a way that provides reasonable privacy for you and as quickly as is reasonably practicable;
  5. The police officer must conduct the least invasive kind of search practicable in the circumstances;
  6. A search must be conducted by a police officer of the same sex as you. If there is no officer of the same sex, they can delegate the power to conduct the search to another person who is of the same sex as you;
  7. The search must be carried out after questioning; and
  8. You must be allowed to dress as soon as the search is over. If your cloth is seized because of the search, the police must ensure you have reasonably appropriate clothing.

GIVE US AN EXAMPLE

Becca is a 22-year-old woman attending the ‘Lost in Paradise festival’ in 2017. Prior to her search for potential drug possession, Becca claims an officer told her she could refuse consent for the search, but her ticket would be confiscated. Due to the pressure from police officers, she was searched in a police van with the front window left uncovered, and 3 male police officers stood outside. She stated she could clearly see the officers, and they could look in to see her. There are a considerable number of unlawful strip search cases reported over the recent years, and the number keeps on rising. It is important that you know how to prevent such a situation from happening and learn what you can do to defend your rights.

WHAT ACTION CAN I TAKE IF I FEEL MY RIGHTS HAVE BEEN VIOLATED?

You can report to the ‘NSW Police Watchdog’ Law Enforcement Conduct Commission for police misconduct (LECC). The LECC provides independent oversight and review of the misconduct of NSW Police.

You can make an online complaint via the LECC website. Make sure that you prepare your statements beforehand, and attach support documents if you have any.

If you have experienced similar situations and wish to take this matter future, please feel free to contact National Criminal Lawyers® and discuss it with our staff.

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