If you are approached by a police officer and asked to submit to a search, you can either consent or refuse a search.
If you consent, remember to ask the officer for the reason of the search and try to take down his/her name, rank and station they are from. It is always a good idea to ask these questions prior to the search. If at any time during the search you do not feel comfortable, let the officers know and at any time during the search you do have the right, after giving consent, to refuse such authority and make them stop.
Generally speaking, the police rely on several powers to conduct a search. In NSW they are bound by LEPRA, Law Enforcement (Powers and Responsibilities) Act, and the evidence produced because of the search is subject to the Evidence Act.
The powers they rely on emanate from the objective of acting swiftly in relation to any investigative leads they may receive relating to an offence. A search without a warrant is always justified by the police based on the guise of ‘reasonable suspicion.’
A police officer may conduct the search, without your consent, if they suspect that any one of the following circumstances exists:
– That you have anything in your possession or control to be stolen.
– That you have anything in your possession or control to be used or intended to be used in a criminal act.
– That you have in your possession a dangerous implement that is being or was used for an offence.
– That you may have in your possession any drugs.
You must remember that the above circumstances can only arise if the police officer has gained suspicion on reasonable grounds. There are generally several situations where such circumstances arise:
– There was a recent offence committed within the vicinity that you were stopped.
– The area of your search is well known to police officers for illegal activity.
If you do not consent but the police officer insists on the search you should remain calm and ask them what legal power they are relying on. Remember that once they start a search without your consent, you should not make any abrupt, abusive or other resisting acts as they may charge you with an offence relating to hindering, obstructing or resisting a police officer. Take a note of the reason for the search and once it is completed you may seek legal advice as to the legality of the search.
The police officers are allowed to:
– Pat you down; the pat should be conducted by someone of the same sex to you.
– Require you to shake or move you hair.
– Require you to open your mouth.
The search should be made in such a way as to not degrade or humiliate you.
The importance of the legality of the search is something fundamental to our criminal system. Such regulations are in place to prohibit the police from abusing their legislative powers in pursuit of justice. If the search is found to have been illegally conducted by the courts then any evidence adduced from the search cannot be used against you. The admissibility of the evidence will be subject to legal argument made by your solicitor on the probative value of the evidence against the prejudicial effect it may have on both you the defendant as well as the message it sends to the police force regarding the manner of which they can conduct the search.
If you have been the subject of a search and are concerned of the manner it was completed, you should seek legal advice.