It is not uncommon to be pulled over by the police in a vehicle, whether for speeding, driving, or a random breath test on the side of the road. However, it is important to understand your rights every time you interact with the police, including your rights to search and to be free from unlawful searches.
As a general rule in NSW, it is against the law for police to randomly search your vehicle, the same as it is against the law for police to randomly search your house; however, there are some circumstances in which police may have powers to conduct a search of your car.
Police powers
The police’s powers to conduct searches are contained in the Law Enforcement (Power and Responsibilities) Act 2002. This act governs the police powers when executing searches of persons, their motor vehicles and their homes.
Power to request disclosure of driver or passengers of motor vehicles
The police may well request that the driver of a vehicle disclose their identity or the identity of any passengers at the time if the police suspect, on reasonable grounds, the vehicle is, was or may have been used in connection with an offence.
Police officers also have the power to request that an owner of the vehicle who is not a driver or passenger of the vehicle at the time disclose the identity of the driver and any passengers who may have been in the vehicle at the time that the vehicle may have been used in connection with any offence.
If an individual fails to disclose the identity of a passenger or driver in these circumstances, they have committed a criminal offence that carries a maximum penalty of $5,500 and/or 12 months imprisonment.
Power to search and seize without a warrant
A police officer may, without a warrant, stop, search and detain a vehicle if the police officer suspects, on reasonable grounds, that one of the following circumstances exists:
- The vehicle contains, or a person within the vehicle has in their possession, anything stolen or otherwise unlawfully obtained;
- The vehicle was or has been used in connection with an offence;
- The vehicle contains anything intended to be used in connection with an offence;
- The vehicle is in a public place or school and contains a dangerous item;
- The vehicle contains any prohibited drug; or
- Circumstances exist that would likely give rise to a serious risk to public safety.
A police officer, when undertaking a stop and search of a motor vehicle, may seize and detain any item that the police officer suspects, on reasonable grounds, is:
- Stolen or otherwise illegally obtained;
- Any item the police officer suspects, on reasonable grounds, may provide evidence of the commission of an offence;
- A dangerous item;
- A prohibited drug or plant.
Under section 148 of the Law Enforcement (Powers & Responsibilities) Act, a police officer can use a sniffer dog without a warrant to determine whether there are drugs in a vehicle. If a sniffer dog signals the potential presence of illegal drugs in a vehicle, this constitutes reasonable grounds for a lawful search.
‘Reasonable suspicion’
As prescribed under section 36 of LEPRA, in order for a police officer to lawfully search a vehicle, police need to have a ‘reasonable suspicion’ that the vehicle contains illicit drugs or other prohibited items. This suspicion must be formulated on a factual basis and cannot rely solely on hearsay or personal opinion. The belief must be formed at the time of stopping and searching the person; it cannot be formed during the search or after it.
The NSW Court of Criminal Appeal case R v. Rondo (2001) provided a more extensive common law understanding of “reasonable suspicion”, with Justice Spigelman stating that a “reasonable suspicion” is more than a “mere possibility” but less than a reasonable belief.
Drivers consent
Within NSW, police have the power to stop cars at random at roadside checkpoints for various purposes, such as random breath testing. Occasionally, police may ask the driver for consent to search the vehicle; however, valid consent must be given voluntarily for police to legally search the car. However, the police are not required to inform the driver of their right to refuse a vehicle search; it is still considered voluntary consent if a driver allows the police to search them.
Do police have to identify themselves?
If you find yourself being pulled over by an unmarked vehicle, it is important that you always comply if you see sirens behind you. However, you are entitled to stay within your locked car until you can be satisfied that the vehicle that has pulled you over is a police officer, and it is well within your rights to ask for official identification.
Search Warrant
A search warrant is a written order that authorises police to enter, search, and seize items from an identified property or vehicle. Under a warrant, the police do not require the driver’s or owner’s consent to search a vehicle; however, they are required to provide a copy of the search warrant upon request and inform the driver of the powers they have under the warrant.
Generally, warrants grant the police the power to search a specific vehicle, to remove specific named items (such as weapons, drugs, or cash), and to remove any additional items the police reasonably believe are connected to a criminal offence. However, they only grant police search powers for a reasonable period, and police must have a reasonable basis to remove any items not specifically listed on the warrant.
When might police get a warrant to search my car?
In NSW, the police can apply for a search warrant under the Law Enforcement (Powers and Responsibilities) Act 2002. The application must set out reasons that the police have for believing they will find evidence on those premises and must satisfy the magistrate or judge that they have reasonable grounds to believe there are, or will be at the time the warrant is executed, goods connected to the offence and that the warrant is likely to lead to an arrest. The alleged offence must also be an indictable offence.
Admissable evidence
If the police discover any evidence from a vehicle search and they did not have a warrant, consent, or reasonable grounds, then the evidence has been unlawfully obtained and is deemed inadmissible. However, under section 138 of the Evidence Act 1995, courts have the discretion to admit unlawfully obtained evidence when the benefits of admitting it prevail over the undesirability of enabling an unlawful search. When determining this, the court may take into account the following:
- the probative value of the evidence;
- its importance to the criminal proceeding;
- the type of offence that is being charged;
- the gravity and deliberateness of the police’s impropriety;
- whether the impropriety was a violation of the International Covenant on Civil and Political Rights;
- the relative difficulty of obtaining the evidence through lawful means
How Hamilton Janke Can Help
Contacting our expert team of criminal lawyers will be highly beneficial, as their vast experience and irreplaceable legal advice will ensure you receive the best possible outcome.
