Police “stop and search” powers are a part of maintaining public confidence and safety but they can all too easily be abused and infringe upon personal rights. There are a range of important limitations to these powers and remedies if you have been subjected to an unlawful stop and search.
The Law on Police Stop and Search Powers in New South Wales
In New South Wales, the Police derive their powers to stop, search and seize without a warrant under Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”).
Pursuant to section 21 of LEPRA, a police officer may, without a warrant, stop, search and detain a person and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:
(a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,
(b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,
(c) the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,
(d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.
As a result of a search, a police officer may seize and detain any of the following, found as a result of the search:
(a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
(b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
(c) any dangerous article, and
(d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985.
Pursuant to section 30 of LEPRA, in conducting the search of a person, police may carry out any of the following:
(a) quickly run his or her hands over the person’s outer clothing, and
(b) require the person to remove his or her coat or jacket or similar article of clothing and any gloves, shoes, socks and hat (but not, except in the case of a strip search, all of the person’s clothes), and
(c) examine anything in the possession of the person, and
(d) pass an electronic metal detection device over or in close proximity to the person’s outer clothing or anything removed from the person.
Your Rights at a Stop and Search
Under LEPRA, the officer conducting a stop and search must tell you their name, rank and station prior to informing you that they will be conducting a search of you. The officer should conduct the search in a reasonably private place, as quickly as possible, and inform you that you may have to remove clothing during the search and why that might be necessary.
The search much be the least invasive kind of search practicable in the circumstances and must not search the genital area of the person, or in the case of a female or transgender person who identifies as female, a person’s breasts unless the police officer suspects on reasonable grounds that it is necessary to do so for the purposes of a search.
Typically, a police officer of the same sex should carry out the search, but that power can be delegated to an officer of a different gender. It’s very important that Police do not question you in relation to any matter whilst conducting the search, and if they do, the search should be stopped whilst questioning occurs under caution (i.e. without first informing you that you have the right to remain silent and that anything you say can be used against you as evidence in court).
Unfortunately, you cannot object to a search by a police officer if they indicate that they have reasonable grounds to search you as described under section 21 of LEPRA. The purpose of the power is to allow Police to exercise searches without consent of the person being searched if there are certain circumstances present which allow for the lawful use of the power.
What Happens if Police Stop and Search me Illegally?
If the Police illegally stop and search you and they do not have reasonable grounds as prescribed by section 21 of LEPRA, you can make a formal complaint to the Law Enforcement Conduct Commission (LECC). Depending on the gravity of the contravention, you may even have grounds to sue the Police.
In the scenario that charges are laid from an unlawful stop and search of you, it may be the case that that all evidence which was secured by the Police which flowed from the unlawful search could be excluded from your case.
For example, if the Police do not comply with any of the above safeguards protecting your privacy, or they have no “reasonable grounds” to search you pursuant to section 21 of LEPRA, then you may have a strong argument to have the evidence flowing from the unlawful search excluded from your court case.
At Hugo Law Group our lawyers have successfully defended clients who have been unlawfully stopped and searched by the Police. Ultimately, it may be the Court comes to a finding that the evidence establishing the ingredients of the charges is inadmissible due to the importance of public policy and confidence in Policing authorities. A finding of this kind is intended to send a message to police that unlawful searches and the weaponisation of their police powers will not be tolerated by the Courts.
Jordan Portokalli, Senior Lawyer