Page Contents
The power of Police to stop and search people without a warrant is limited by law. Police simply cannot go around stopping and searching people without a reasonable suspicion or other legal basis upon which to do so. In criminal law, there are often instances where Police have acted improperly when stopping and searching a suspect which can give rise to applications to the Court to have such evidence excluded or ‘thrown out’ on the basis that the evidence was improperly or illegally obtained. In instances where the evidence located during the improper or illegal search forms a large part, or the entirety of the Police case against an accused, the exclusion of improperly or illegally obtained evidence can result on charges being withdrawn, dismissed or otherwise result in a not guilty verdict.
What are the Police Powers to Stop and Search Persons in NSW?
Sections 21 and 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), commonly referred to as LEPRA set out the circumstances in which the police have the power to stop and search a person or motor vehicle without a warrant.
Section 21 sets out the power to search persons and to seize and detain things without a warrant.
- A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:
- the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,
- the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,
- the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,
- the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985 (NSW), a prohibited plant or a prohibited drug.
- A police officer may seize and detain:
- all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
- all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
- any dangerous article, and
- any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985 (NSW),
found as a result of a search under this section.
What are the Police Powers to Stop and Search Vehicles in NSW?
Section 36 of the Act sets out the power to search persons and to seize and detain things 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 any of the following circumstances exists:
- the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, anything stolen or otherwise unlawfully obtained,
- the vehicle is being, or was, or may have been, used in or in connection with the commission of a relevant offence,
- the vehicle contains anything used or intended to be used in or in connection with the commission of a relevant offence,
- the vehicle is in a public place or school and contains a dangerous article that is being, or was, or may have been, used in or in connection with the commission of a relevant offence,
- the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, a prohibited plant or prohibited drug in contravention of the Drug, Misuse and Trafficking Act 1985 (NSW),
- circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk.
- A police officer may, without a warrant, stop, search and detain a class of vehicles on a road, road related area or other public place or school if the police officer suspects on reasonable grounds that any of the following circumstances exist—
- a vehicle of the specified class of vehicles is being, or was, or may have been, used in or in connection with the commission of an indictable offence and the exercise of the powers may provide evidence of the commission of the offence,
- circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk.
- A police officer may seize and detain:
- all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
- all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
- any dangerous article, and
- any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985 (NSW),
found as a result of a search under this section.
What are Reasonable Grounds to Stop and Search in NSW?
The issue as to what constitutes reasonable grounds is one which is contentious. Quite often, police will seek to justify their decision to stop a person or vehicle by asserting all sorts of justifications. We will examine some of the most common reasons why police seek to justify their decision to stop and search persons or vehicles.
What is Reasonable Suspicion to Stop and Search in NSW?
Take, for example, a situation where the police see a sports car which has been modified. It is not uncommon for such vehicles to attract the interest of police. The police stop the vehicle to ‘check out’ the vehicle and its occupants. In the process of the stop, the police see one of the occupants appear to place something in the glovebox. The police then search the car and find cash and drugs inside the car. Based on this find, the police obtain search warrants to search the occupants’ homes and find more drugs, leading to further charges.
The above is a similar set of circumstances considered by the NSW Court of Criminal Appeal in the case of R v Rondo [2001] NSWCCA 540. In that case, the NSW Court of Criminal Appeal held that the stop and subsequent search was unlawful and stated, amongst other things that:
- A reasonable suspicion involves less than a reasonable belief, but more than a possibility.
- Some factual basis for the suspicion must be shown.
- What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he/she did so. Having ascertained that information, the question is whether than information afforded reasonable grounds for the suspicion which the police officer formed. Regard must be had to the source of the information and its content, seen in the light of all of the surrounding circumstances.
Can Police use Police Intelligence to Stop and Search in NSW?
Police often refer to Police Intelligence or ‘intel’ as a means of justifying their reasonable suspicion. Due to its claimed sensitivity, the sources of such ‘intel’ is not disclosed to the defence and police will simply refer to they fact that they have ‘intel’ without going into further detail.
Take for example a situation where the police stopped an accused’s car due to information that the vehicle may have been used in a break and enter. There are a number of occupants in the car all of whom object to being searched after they were pulled over by the police.
In Streat v Bauer; Streat v Blanco (unreported, Supreme Court of NSW, Smart J, 16 March 1998), the Supreme Court of NSW held that the refusal of the persons to insist on their lawful rights to object to a search of their vehicle did not constitute a reasonable grounds for suspicion on the part of the police, further the court also pointed out that the nature of the police ‘intel’ as to the vehicle was also unsatisfactory.
Can Police Stop and Search Me if I have a Criminal Record in NSW?
A bad criminal record alone is not grounds for a reasonable suspicion to stop and search someone.
Can Police use an RBT to Stop and Search a Vehicle or Persons in NSW?
Although the police have the power under the Road Transport Act 2013 (NSW) to pull drivers over for the purposes of a Random Breath Test (RBT), it is illegal for police to use an RBT to pull people over for the real purpose of gathering evidence which might justify a search of the vehicle or its occupants.
What if a Person Consents to a Search of their Vehicle or Themselves in NSW?
If an accused validly consented to being searched by police, the police did not have to prove that they had a reasonable suspicion. Even if police had no reasonable grounds to conduct a search at the time, a search is not illegal if a defendant consented to being searched by police. Whether such consent was voluntary or valid can be an issue which arises in a case even if an accused consented to themselves or their vehicles being searched by police.
Practical Considerations
It is important that the circumstances and evidence of each case be carefully examined by an experienced criminal defence lawyer. The question of whether the police validly exercised their powers to stop persons and/or vehicles can be a complex one and it is therefore important that you consult with an experienced criminal defence lawyer as soon as possible after you have been charged with offences following a stop and search by police.
The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you, or someone you know has been charged with a criminal offence and requires legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law matters further.
