The law that governs the power and responsibilities held by police and other law enforcement officers is outlined in the Law Enforcement (Power and Responsibilities) Act 2002 (LEPRA). LEPRA sets out a number of safeguards for interactions between police and the public. The power of police to stop and search an individual under certain circumstances is regulated by LEPRA.
Stop and search powers
Generally, the police require a warrant before they can stop and search an individual. However, there are circumstances where a warrant is not required. The circumstances under which a police officer may stop and search a person without a warrant are outlined in Part 4 of LEPRA.
Section 21 of LEPRA allows a police officer to search and detain a person if the police officer suspects on reasonable grounds that the person has in their possession (or under their control) any of the following:
· A prohibited plant or a prohibited drug
· Anything stolen or otherwise unlawfully obtained
· Anything used or intended to be used in connection with the commission of a relevant offence
· A dangerous article that has been used in (or in connection with) the commission of a relevant offence
What constitutes reasonable suspicion?
The leading NSW authority on reasonable suspicion is R v Rondo. In this case, the Court of Criminal Appeal ruled that the search of a vehicle (during which cannabis was found) was illegal because the officers involved didn’t possess a ‘reasonable suspicion’ at the time the stop and search was conducted. The evidence gained from the illegal search was subsequently excluded as it was ruled to have been obtained illegally.
According to R v Rondo, a reasonable suspicion involves more than a possibility, but less than a reasonable belief. The suspicion must have a factual basis, it cannot be based on hearsay or speculation. 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 following situations do not, in themselves, give rise to reasonable suspicion:
· appearing nervous;
· being in the company of individuals who are suspected of having drugs;
· being in an area that may be associated with drugs (such as a music festival).
If a search is conducted illegally, there is the potential to have the evidence obtained during the search excluded, which may lead to the charges being dropped.
What are your rights if approached by police?
If police ask you to disclose your name and address, it’s best to comply with this request. However, you are not obliged to answer any other questions put to you by the police.
Never tell police that you are consenting to a search. You can still comply with their instructions, but it is best to never expressly give consent for a search. If you give consent, the police don’t need to prove that they had a reasonable suspicion to search you.
If the police choose to search you, it’s best to remain calm and cooperative.
Always ask to obtain legal advice before consenting to an interview or speaking with the police further. It is your right to have a lawyer present during a police interview and the police must comply with this request.
If you need advice or representation for a criminal matter please contact Hamilton Janke Lawyers 24 hours a day, seven days a week on 4038 1666 (office hours) or 0422 050 502 (24/7).