If you have attended events and festivals in NSW over recent years, you have probably noticed a significant police presence, often accompanied by sniffer dogs looking for people carrying drugs. If you are stopped and searched by police, it is important to know your rights and what police can and can’t do.
The following information outlines police powers regarding stopping you, searching you and using sniffer dogs.
Power to search
Police have the power to stop, search and detain you if they reasonably suspect that you have drugs or anything dangerous or unlawful on your person. The only basis required for a search is a reasonable suspicion held by the police officer. A warrant is not required and is almost never used in practice.
What are “reasonable grounds to suspect”?
The police officer must have a factual basis for their suspicion. Simply being present at an event like the Mardi Gras Party or a music festival may not make it reasonable for the police to suspect you are carrying drugs or something illegal. Police guidelines direct police to consider things like the time and location, your behaviour and ‘antecedents’ (whether you have a criminal record or other information known to police) when deciding whether to search someone.
If you can show that the police did not have ‘reasonable grounds to suspect’, the search may be illegal and any force used will may be an assault by the police. But this would need to be established in court after the event. You would not be successful in any court action if the police found drugs or other illegal items when they searched you.
What can I do when a police officer says they will search me?
If a police officer tells you they will search you, try to remain calm, polite and cooperative.
Politely ask why the officer believes it is necessary to search you. Even if you think that the police don’t have a reason to search you, it’s often better to tell them that you don’t consent to the search but you’re going to let it take place anyway. If you resist the search, you may be charged with offences like hindering a police search or resisting arrest. If you become agitated, you could be arrested or fined for being abusive.
What does the police officer need to do before searching me?
Before searching you, a police officer must:
Provide evidence showing they are a police officer, such as their warrant card, if they are not in uniform;
Tell you their name and station;
Tell you the reason for the search;
Ask for your cooperation;
Tell you if you will have to take an item of your clothing off during the search; and
Tell you why you need to take any clothing off for the search.
What can and can’t the police officer do when searching me?
There are some legal safeguards in place that police must comply with if they decide to search you. There are also some guidelines that the police only have to comply with so far as it is reasonable practicable.
The police have to:
Conduct the least invasive kind of search practicable in the circumstances. This means that a strip search can only be conducted where no other search will do;
Conduct the search in a way that provides you with reasonable privacy and as quickly as is practicable;
Make sure you are searched by an officer of the same gender, if reasonably practicable; and
Allow you to dress as soon as the search is finished.
The police cannot:
Search your genital area or breasts (for female or female identifying trans and intersex people), unless it is reasonable necessary; or
Question you while you are being searched.
The police officer told me to remove some of my clothes. Do I have to?
If the police require you to remove your clothes, other than just outer clothing (like a coat or jacket), you are being strip-searched. The police cannot strip search unless they believe on reasonable grounds that a strip search is necessary and that the seriousness and urgency of the circumstances require it.
A strip search is only a visual search of your body. There are extra restrictions on police actions when conducting strip searches.
During the search the police are not allowed to:
Ask you to remove any clothing that is not necessary. However there can be disagreement over what clothes are necessary to remove;
Touch your body;
Search any body cavities; or
Search your genital area.
There are further rules that are not mandatory, and police only need to comply with them so far as is reasonably practicable.