If you look, read, and watch any media, there has been a lot of controversy, criticism, and legal action around how police have exercised their powers around person searches, especially searches of people at music festivals.
It is well settled since the dawn of the music festival that these events attract drug use. However, that notion of itself is not a legal justification for the police exercising their search powers.
Drug Detection Dogs
The use of ‘drug detection’ or ‘drug sniffer’ dogs while legal (ss 146 – 147 of LEPRA) is also controversial and subject to widespread criticism by the media and politicians.
A dog’s positive indication is insufficient to justify the exercise of a search power.
It is also not considered a search under the law.
The State of Mind Test
In exercising search powers police must have a certain ‘state of mind’ they cannot randomly target a person and then decide, this person is going to be searched.
The Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) outlines the conditions in which police can lawfully require persons to submit to a person search.
Police have general person search and seizure powers starting at sections 20 to 23 of LEPRA.
Section 21 provides (in part) that a police officer can without a warrant, stop, search and detain a person and anything in their possession or under their control if they suspect on reasonable grounds that:
- The person has in their possession/under control anything stolen or otherwise unlawfully obtained.
- The person has in their possession or under control, in contravention of the Drug Misuse and Trafficking Act, a prohibited plant or drug.
They can then seize and detain all or part of the things as a result of that search.
What does “suspect upon reasonable grounds” mean?
Rondo’s case[1] outlines the things that must emerge in the state of mind of a police officer before they decide to search.
When considering the concept of “reasonable suspicion” Rondo’s case said:
- It must be more than just a possibility the person could have something on them.
- There must be something that creates in the mind of the ordinary (or reasonable) person an apprehension or fear that a certain fact
- It cannot be just a reason to consider or look into the possibility they might have something on them.
- That is the basis of any search cannot just be that it is a fishing expedition in the hope the person may have something on them like drugs etc.
- The “reasonable suspicion” cannot be arbitrary and there must be some factual basis for showing the suspicion.
Therefore, it is not sufficient for police to reason just because people attend a music festival, they must all have drugs on them and so it is okay for them to search any person they walk up to.
Similarly, police might rely on intelligence reports to justify searches or the fact a certain area may be known for drug use. Again, this may be insufficient to demonstrate the exercise of a search powers.
The Search for Facts
When the law requires that certain facts must exist, it means that the suspicion must be based in a factual circumstance.
That is the information operating in the mind of the police officer at the time must be based in fact and not speculation as to whether certain facts exist, that is a fishing expedition.
For example, when asked if the person has consumed any drugs and they respond, ‘yes’ then that is information based on an assertion of fact told to a police officer by the person and may be relied upon although of itself it may be hearsay or inadmissible as evidence.
Another example may be that a police officer observes a person to be drug affected or intoxicated.
Police officers are regarded as experts by the court when it comes to assessing people for intoxication because they see it almost every single day.
Similarly, if they smell what appears to be cannabis that may also be sufficient to exercise a search power.
What is important what information is in the mind of the police officer at the time they stopped the person.
So, obtained the information, the question is whether that information can afford the reasonable grounds for the suspicion which the police officer formed.
In answering that question the court must have regard the source (or probative value) of the information and its content against the background of the circumstances.
Searches Generally
On a person search (that is not a strip search) a police officer may:
- Quickly run their hands over your outer clothing and
- Require you to remove any coat or jacket (or similar piece of clothing), gloves, shoes, socks, hat.
- They cannot tell you to remove all your clothes EXCEPT in the case of a strip search (s. 31 of LEPRA).
- They can examine anything in your possession and pass an electronic detector in close proximity to your outer clothing or anything removed from you.
When exercising a power what are the obligations of police officers?
The Use of Safeguards
If you are submitted to a search and when the police exercise their powers, whether it is under LEPRA or any other Act, they must :
Tell you their name and place of duty, and
The reason for the search.
They must also give you a warning that you are required to comply with the search.
If they don’t do these things then any evidence they obtain or discover as a result of the power could be excluded by a court, which means they might not be able to prove the allegation (charge) against you.
Conclusion
If you have been searched and charged with an offence, please contact me as soon as possible on (02) 8824 4736 or 0411 460 034 and we will be able to provide you with advice regarding your case.
Disclaimer
The content of the McDonald Law website is provided for information purposes only. The contents of this website do not constitute legal advice, it should only be used for information and entertainment purposes only. If you have a particular matter that you need legal advice for, or have any questions about our disclaimer please contact our office (02) 8824 4736 or 0411 460 034
[1] R v Rondo [2001] NSWCCA 540