When is it legal for a police officer to search you?
Have you ever questioned the powers of police in situations of an arrest or search? There may be occasions where police may be acting outside their scope of powers.
To better understand when such situations may be relevant to you, it is good to understand the police powers in relation to searching.
The law has long held sacred the maxim that “a man’s home is his castle” as famously quoted in the iconic Australian film, “The Castle”. The common law derived this civil action of trespass to ensure that individuals could protect this most important right.
The High Court of Australia in Halliday v Neville gave the following decision as stated by Justice Brennan….”A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or executed by law”. In other words, Police cannot enter or remain on your property without your consent, unless they are entering to prevent a crime or are entering by way of having an issued search warrant.
In many cases presented before the courts on behalf of police, evidence obtained by way of search and seizure is relied upon and often forms the core of the prosecution case. The courts however will most likely exclude such evidence if it has not been obtained lawfully, so that it can keep the individuals rights against trespass intact.
There are three key areas that need to be considered when looking at search and seizures. They are search and seizure before an arrest, during an arrest and after an arrest.
When can a police officer search you?
There are certain circumstances when Police can stop and search you. These are:
- By your consent.
- If you are placed under arrest.
- If you are in the custody of police.
- If police suspect, on reasonable grounds, that you are carrying stolen property or you are carrying an item that is about to be used in a serious crime.
- If police suspect, on reasonable grounds, that you are carrying a prohibited drug, whether on you or in your vehicle.
- If police suspect, on reasonable grounds, that you have a knife or other dangerous implement.
- If you are driving motor vehicle which police believe belongs to a “class of vehicle” police suspect, on reasonable grounds, was used in conjunction with an indictable offence.
- If police have a search warrant.
Whenever search powers are considered, the common thread is whether there was a ‘reasonable suspicion’ and ‘reasonable belief’.
What is a reasonable suspicion?
Police must show reasonable suspicion and there has to be some factual basis for the suspicion. For example, if a police radio check states that a certain vehicle you drive may be used in robberies, does not give police ground to stop and search your vehicle, in order to try and find evidence of a robbery.
The law treats belief as a higher standard than suspicion. In other words, a belief will always be viewed as something more substantial than just a suspicion.
A suspicion must be reasonably held. The test is not only whether the police officer actually had the suspicion or belief, but also whether a reasonable person, armed only with the information that the police officer had at the time, would have held a belief. For example, if a red convertible vehicle was driving down the road and a police radio check revealed “the vehicle may be used in break and enter offences”, it would be found by the courts that such speculative words are not grounds to hold a reasonable suspicion, and therefore such a vehicle cannot be lawfully stopped and detained to be searched.
Police may search a person or vehicle if they have consent of the person. However this consent must be informed consent. This is when a person agrees to be searched but they must do so with the knowledge that they have a right to refuse. Police as a matter of best practice should inform a person of their right to refuse to be searched. If this is not complied with, then any evidence they find as a result of the search may be inadmissible. In other words, may be not used as evidence in court.
There is no common law power to search a person before arrest. If police officers should do so, they would be guilty of a trespass. The only way police may lawfully search or seize property off you before an arrest, would be if they had a search warrant.
Although the common law does not provide a power of search before an arrest and generally does not permit the seizure of property before arrest, there is an exception in relation to seizure. These exceptions are:
- Police must have reasonable grounds for believing that a serious offence had been committed.
- Police must have reasonable grounds for believing that the article (property/object) in question is either the fruit (cause) of the crime, or is material evidence to prove the commission of the crime.
- Police must have reasonable grounds to believe that the person in possession of it (the property or object) has himself committed the crime, or is implicated in it, or is an accessory to it, or at any rate his refusal must be quite unreasonable.
- Police must not keep the article (property/object) for any longer than is reasonably necessary to complete their investigations or preserve for evidence, and it must be returned upon completion of the investigation/matter, unless in the case of drugs which are destroyed.
- The lawfulness of the conduct of police must be judged at the time, and not by what happens afterwards.
There are a number of statutory powers that allow police to stop search and detain persons prior to any arrest being affected. These powers are often found with the Law Enforcement (Power and Responsibilities) Act 2002.
Section 21 of this Act states the grounds on which a police officer has power to search persons and seize and detain things without warrant. Under this section though, a police officer may stop, search and detain any person whom he or she suspects on reasonable grounds of having or conveying anything stolen or otherwise unlawfully obtained, anything used or intended to be used in the commission of a relevant offence or any prohibited plants or prohibited drug. The point is emphasized here again, that police must have reasonable grounds and that if you have been suspected of doing one thing, say graffiti on the wall of some buildings and police search you and find a house breaking implement – say a screwdriver, then the police cannot seize this item as the only offence they would be searching you for is the possibility that you may have been spray painting on the walls.
If a police officer approaches you and indicates that they wish to undertake a search, the officer must provide evidence that they are a police officer, provide their name, their place of duty and tell you the reason for the search.
Police must indicate to you that it is a legal requirement that you comply with a search that they have power to take out. If you do not comply, you could be guilty of an offence under the Law Enforcement (Power and Responsibilities) Act 2002.
Police can also use sniffer dogs in certain circumstances. Sniffer dogs are only used in authorised areas such as in pubs or clubs, sporting events, music festivals and concerts or public transport platforms to name a few. The sniffer dogs are used to find prohibited drugs or plants. Police must ensure that the dog is kept under control at all times and must take all reasonable precautions to ensure the dog does not touch you.
If a dog sits down next to you, this will then be a reasonable ground for the police then to undertake a search. The police do not have the power to detain you whilst the dog ‘sniffs’ around you.
Often, people will agree to a search being undertaken by a police officer without knowing all of their legal rights.