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Police powers

Searches

Police have powers to search people and property, and seize articles such as drugs for evidence, but their powers are not unlimited.

There are different rules for personal searches, and searches of houses or land.

Personal searches

The police can search a person without arresting them under the Law Enforcement (Powers and Responsibilities) Act 2002, section 21. This section gives police the power to 'stop, search and detain' anyone who they 'reasonably suspect' might be in possession of drugs. Police can search a vehicle if they have a similar reasonable suspicion under the Law Enforcement (Powers and Responsibilities) Act 2002, section 36.

Search after arrest

The police have the right to search a person after an arrest (Law Enforcement (Powers and Responsibilities) Act 2002, section 23).

A police officer above the rank of sergeant can request that a doctor examine a person in custody (if such an examination is relevant to the charge) without the person's consent.

Women should only be searched by a woman police officer. If no female constable is available, however, the police can request 'any female' to conduct the search under their direction.

Case study - the case of the highway hirer

In DPP v Leonard [2001] NSWSC 797, the defendant, driving a hire car, was stopped for a random breath test on the Sturt Highway. The police officer told the defendant that it was common for cannabis to be transported in hire cars on that highway, and asked if he could search the car. The defendant said, Go for it, there's nothing in there'. The police found a traffickable quantity of cannabis in the boot. The magistrate hearing the case found that the police did not have reasonable grounds for suspicion to justify a search and that the defendant's consent was not valid because the police had not informed him that he had a right to refuse consent.

On appeal, the Supreme Court ruled that the consent was valid and therefore the search was legal. The police do not have to advise you that you can refuse. (Interestingly, the Director of Public Prosecutions did not appeal the magistrate's finding that there were no reasonable grounds for the search in the officer's stated reasons.)

Sniffer dogs

Police use specially trained dogs to detect the presence of prohibited drugs.

Under section 148 of the Law Enforcement (Powers and Responsibilities) Act 2002police can use sniffer dogs without a warrant to detect illicit drugs, but only for 'general drug detection', defined to mean using a dog to detect the potential presence of drugs by smell, before the police conduct any actual search of the person or their belongings.

Sniffer dogs and warrants

A police officer is authorised to use a dog for general drug detection only as provided under the Act (Law Enforcement (Powers and Responsibilities) Act 2002, section 147).

Police can use a dog to assist with general drug detection without a warrant (Law Enforcement (Powers and Responsibilities) Act 2002, section 148) in relation to a person who is:

  • at, entering or leaving premises licensed for the consumption of liquor sold there (not including a restaurant or dining room)
  • at, entering or leaving a public place being used for 'a sporting event, concert or other artistic performance, dance party, parade or other entertainment'
  • at, entering or leaving a train, bus or light rail vehicle, on a prescribed route, or a station, platform or stop
  • at, entering or leaving any premises licensed to perform body art tattooing, or any other premises that the police officer reasonably suspects are being used to perform body art tattooing procedures for fee or reward (Tattoo Parlours Act 2012¬†(NSW), section 31)
  • at any public place in the Kings Cross precinct (being the area including and bounded by the parts of streets specified in Schedule 2 to the Liquor Act 2007(NSW)).

In other circumstances - for example, in a public street (other than the Kings Cross precinct) - police can only use drug detection dogs to search people or vehicles with a warrant issued under the Law Enforcement (Powers and Responsibilities) Act 2002, section 149.

Ombudsman's report

The 2006 NSW Ombudsman's report Police Powers (Drug Detection Dogs) Act 2001 Review found that drugs were found in only a quarter of cases where the dogs had indicated the presence of drugs, which suggests that sniffer dog 'indication' may be of doubtful accuracy. The Ombudsman report also found that the use of sniffer dogs had no apparent effect on apprehending drug suppliers, with less than 1% of the over 2000 people found in possession after a search successfully prosecuted for supply.

Personal searches by customs officers

People coming into Australia are obliged to answer questions from a customs officer about prohibited drugs. Luggage can be inspected even where there is no reason to suspect that it might contain drugs.

There are two types of personal searches available under the Customs Act 1901 (Cth)in relation to a person suspected of carrying prohibited imports: frisk searches and external searches.

A frisk search is a quick feel of a person's outer garments, including any clothing voluntarily removed. An external search involves a search of a person's body (but not body cavities) and any of their clothing.

If a person refuses a frisk or an external search, the customs or police officer may apply to a specially authorised customs officer or a magistrate for an order that an external search be made.

If a customs or police officer suspects on reasonable grounds that a person is carrying prohibited imports, they may be detained and searched. The search must be conducted as soon as practicable by an officer of the same sex, and appropriate arrangements made for privacy.

If internal concealment is suspected

People reasonably suspected of internally concealing a suspicious substance may be detained by a customs officer or police officer. The chief executive officer of Customs or a police officer must then seek a detention order (up to 48 hours, but renewable) from a judge or magistrate.

If the person detained does not consent to an internal search, the customs or police officer must apply to a judge for an order for a medical practitioner to carry out the search.

Searches of property

To enter a person's home or any other private property without the invitation or consent of an occupier, the police must have a search warrant (except in emergency situations such as chasing an escaping suspect, or where there is apparently an assault occurring on the premises). To obtain a search warrant, the police must swear on oath to an authorised officer that they have reasonable suspicion of a crime being committed on those premises, and the basis of that suspicion (Law Enforcement (Powers and Responsibilities) Act 2002, sections 47, 47A and 48).

When police are at the premises

When police go to premises with a search warrant they must produce an occupier's notice. Otherwise they do not have the right to enter the premises.

It is an offence to obstruct or delay police entry, or give an alarm. It is an offence to resist a police officer who appears at their door with a search warrant (Law Enforcement (Powers and Responsibilities) Act 2002, section 52).

Police powers with a warrant

The police can use as much force as is reasonably necessary to conduct the search, which can mean pulling out drawers (and ceilings).

Search warrants also give police the right to search a person found in or on the premises if they have a reasonable suspicion that the person has the thing mentioned in the warrant (Law Enforcement (Powers and Responsibilities) Act 2002, section 50).

With a warrant, police can cross property owned by others, break open doors and windows and do other 'necessary' acts to a property reasonably suspected of being drug premises (Law Enforcement (Powers and Responsibilities) Act 2002, section 141).

Evidence from illegal searches

Evidence obtained through illegal police searches (or evidence otherwise illegally or improperly obtained) is admissible, but only if the magistrate or judge uses their discretion to allow it. The prosecution must establish the desirability of admitting the evidence (Evidence Act 1995, (NSW), section 138).

Detection by helicopter

Where a police helicopter detects cannabis plants from the air and police then enter the property without a warrant, the evidence obtained may not be admissible. In Nicholson and Curran (unreported, District Court Inverell, 25 March 1999) the discretion was exercised to not admit evidence of cultivation obtained from such a raid, resulting in the conviction being quashed. In subsequent civil proceedings, the same appellants and 22 of their fellow residents at the Wytaliba community were awarded a total of over $1 million in damages for the police trespass (Curran v Walsh, unreported, District Court, 17 October 2000).

Seeking the proceeds of crime

Search warrants can also be issued under the legislation dealing with the confiscation of proceeds of crime. They can, for example, cover documents that can assist in tracking down property that is drug-derived or which belongs to those who are reasonably suspected of drug-related activities.

Undercover police

Police investigations into drug offences commonly involve the use of undercover officers who either offer a degree of encouragement to people to commit an offence, or participate in criminal activity, or both. There is no substantive defence of entrapment in Australian law (Ridgeway v R [1995] 184 CLR 19).

The fact that drugs are supplied to an undercover police officer who encourages the supplier to break the law is not a mitigating circumstance in sentencing (R v Chan[1999] NSWCCA 103). In Ridgeway, the High Court ruled that although generally evidence obtained by undercover police agents in the course of their participation in a drug importation was admissible, the degree of police involvement in the criminal activity in that particular case was excessive (and so the resulting evidence obtained was inadmissible).

In response to this decision, both NSW and federal governments passed legislation to make otherwise unlawful conduct by police (such as the supply of prohibited drugs) legal, provided it is authorised as part of a controlled operation.

Police directions in public places

Police can legally give a 'reasonable direction' to a person in a public place who they believe on reasonable grounds is supplying, or soliciting supply of, or purchasing prohibited drugs. The direction must be 'reasonable in the circumstances for the purpose of stopping' the supply or purchase. It is an offence to fail to comply with the direction without reasonable excuse (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), section 197).

LawAccess NSW

LawAccess NSW is a free government telephone service offering legal information, referral to appropriate free legal services in your area or private solicitors, and in some cases, legal advice.
Tel: 1300 888 529

Legal Aid NSW provides free legal representation in drug cases if you qualify under the means test. This means test is complicated. Whether you qualify depends on:

  • your income
  • how many dependants you have
  • other factors like how much rent you pay.

If you receive a Centrelink pension or benefit, you will usually qualify under the means test. If you don't receive Centrelink payments but you are on a low income, you should apply for legal aid. It is worth testing whether you are eligible. Often people qualify for some legal aid, but must also make a contribution towards the cost.

Legal Aid NSW will also give you limited free advice, even if you don't qualify for legal aid.

If you are an Aboriginal person or a Torres Strait Islander, you can get free legal representation for drug cases and other criminal matters from the Aboriginal Legal Service in your area.

You can get free legal advice from a community legal centre. They will advise you but usually will not represent you in court.