It is not uncommon to be pulled over by the police in a vehicle, whether that be for speed, 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 search rights and 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 powers of police to conduct searches are contained under 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 which would likely give rise to a serious risk of public safety.
A police officer, when undertaking a stop and search of a 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 somewhere in a vehicle, this is considered reasonable grounds for a lawful search.
‘Reasonable suspicion’
As prescribed under section 36 of LEPRA, in order for the 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 just rely on hearsay or personal opinion. The belief must be formulated at the time of stopping and searching the person, it cannot be formed during the search or after the search.
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, it is within the police power to stop cars at random at roadside checkpoints for various purposes such as random breath tests. Occasionally, police may ask the drive for consent to look through the vehicle; however valid consent must be given voluntarily for police to legally conduct a search of 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 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 which gives the police the authority to enter, search and seize items from an identified property or vehicle. Under a warrant, the police do not require the driver or owners 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 powers to search a specific vehicle, to remove specific names items (such a weapons, drugs or cash) as well as remove any additional items that the police reasonably believe are connected to a criminal offence. However, they only provide police search powers for a reasonable length of time, 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 is, 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.
Key Takeaways
- NSW police can search a vehicle without a warrant under certain conditions, like suspicion of stolen items, use in a crime, or containing dangerous items.
- "Reasonable suspicion" is required for lawful searches, based on facts rather than speculation.
- Police may request a driver's or passengers' identity if the vehicle is suspected of being involved in an offence.
- Consent is needed for a search unless under specific lawful circumstances.
- Evidence found in unlawful searches may be deemed inadmissible unless outweighed by the benefits of its admission.
Admissable evidence
If the police discover any evidence from a vehicle search and they did not have a warrant, consent, or reasonable grounds, than 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 prevails over the undesirability of enabling a 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
Written By
James Janke
James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia
