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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.
The police can search a person without arresting them under the NSW Law Enforcement (Powers and Responsibilities) Act 2002, section 21. This 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.
Search after arrest
The police have the right to search a person after an arrest and they generally do.
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 female police officer. If no female constable is available, however, the police can request ‘any female’ to conduct the search under their direction.
Police use specially trained dogs to detect the presence of prohibited drugs.
Police can use sniffer dogs without a warrant to detect illegal drugs (under the NSW Law Enforcement (Powers and Responsibilities) Act 2002) 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.
Police can use a dog to assist with general drug detection without a warrant 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
- 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.
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.
Types of search
There are two types of personal searches available under the Customs Act 1901 (Commonwealth) in relation to a person suspected of carrying border controlled drugs: 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.
Detention and search
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.
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 for a person to resist a police officer who appears at their door with a search warrant.
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.
In the case where police have a warrant to search a property reasonably suspected of being drug premises, police can cross property owned by others, break open doors and windows, and do other ‘necessary’ acts to gain entry.
Evidence from illegal searches
Evidence obtained through illegal police searches (or otherwise illegally or improperly obtained) is admissible, but only if the judge or magistrate uses their discretion to allow it. The prosecution must establish the desirability of admitting the evidence.
Detection by helicopter
Where a police helicopter detects cannabis plants from the air, police still must obtain a search warrant to enter the property. Without a warrant, any evidence would be unlawfully obtained and so inadmissible (unless the judge or magistrate used their discretion).
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.
Police investigations into drug offences commonly involve the use of undercover offers 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.
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.
Under NSW and federal legislation, otherwise unlawful conduct by police (such as the supply of prohibited drugs) is made 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.