06 Sep SEARCHED BY POLICE? KNOW YOUR RIGHTS
Being questioned or searched by police is a stressful process regardless of whether you have something to hide or not. It’s therefore important to know your rights when dealing with police and when a police search might be intruding on your rights.
The powers of Police to stop and search people and vehicles are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The act (or as it’s commonly referred to ‘LEPRA’) details the rights and responsibilities of both police and the public before and during a search. Any evidence obtained during a search that does not comply with LEPRA can therefore be contested and potentially disqualified at trial.
Refusing to comply with a police search is an offence under LEPRA. You are however entitled to be provided with identification proving they are a police officer as well as their name and the police station they are based at. They must also inform you that refusing to comply with the search is an offence. Where you have not agreed to be searched, have not yet been arrested or taken into custody, and police do not possess a warrant to search you the police must also provide you with an explanation for why this search is justified.
For a random search on you or your vehicle to be justified, the police must “suspect on reasonable grounds” that you are either;
- Carrying a prohibited drug,
- Carrying a knife or other dangerous implement,
- Carrying stolen property or an item that is about to be used in a serious crime,
- Driving a motor vehicle similar to a vehicle that police suspect was used in conjunction with an offence,
- Driving a motor vehicle that contains somebody wanted for arrest,
- (When in a public place or school), you are likely to contribute to a serious risk to public safety.
What exactly constitutes ‘reasonable’ grounds is where things can become questionable. For a police officer’s suspicion to be ‘reasonable, they do not have to have absolute proof. However, the suspicion must be based on more than just a vague hunch.
If the search is taking place in or around specific locations such as concerts, pubs or public transport locations, police are also authorised to use sniffer dogs to detect illicit drugs or explosives. If a dog sniffs around you then sits down next to you this will create reasonable grounds for a police officer to search you.
Whether the police search is authorised on the basis of you consenting, a police search warrant, a police charge and arrest or a police officer’s reasonable suspicion of one of the above, you hold the same rights when being searched. The two most common types of a search in NSW are the frisk search and the strip search.
A frisk search is conducted by the police officer running hands or a metal detector over an individual’s outer clothing. In completing this search police may also run their hand through the individual’s hair, instruct the individual to squat and demand that they open their mouth. A strip search, on the other hand, requires the individual to remove all of their clothes and be examined without the police officer touching them.
A strip search may be conducted where it is considered reasonably necessary in light of the seriousness or urgency of the situation. Strip searches allow the police to visually inspect the accused with all items of their clothing removed. The search must be done privately, cannot be done within the view of anyone of the opposite sex (without your consent) and cannot involve any physical touching. If the person being searched has an intellectual disability or is over the age of 10 and under the age of 18 they can still be searched however this must be in the presence of a parent, guardian or other adult of their choosing.
If after all of this you are arrested and charged with an offence then remember;
- You do not need to provide police with any information aside from your name and address
- You are entitled to contact a lawyer
- You are entitled to contact a friend or family member
- You have the right to an interpreter and medical attention where necessary.
Contact our criminal law specialist
Philippa Grant on 9976 0231