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.
1. Reasonable grounds for being searched
Power to search
Police have a general power of search and seizure which is broadly defined with few safeguards. A police officer has the power to stop, search and detain anyone reasonably suspected of having drugs or anything dangerous or unlawful on their person. A warrant is not required and is almost never used in practice. The only basis required for a search is a reasonable suspicion held by the police officer.
What are “reasonable grounds to suspect”?
There must be a factual basis for the suspicion. 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). Simply being present at an event such as the Mardi Gras party or a music festival is not a reasonable ground to suspect you are carrying drugs or something illegal.
If the police do not have these “reasonable grounds to suspect”, the search is illegal and any force used will be an assault by the police officer. This would need to be established in court but you would not succeed if the police officer did find drugs or other illegal items when they searched you. Another option to consider is a complaint against the police officer.
Using sniffer dogs to establish “reasonable grounds to suspect”
Police use sniffer dogs in order to form the basis of a legal police search. This part of the law doesn’t give police the power to detain so they cannot force a person to stay in an area while the dog sniffs that area. However, if a person does leave the area police can use that as a basis for “reasonable grounds to suspect”.
If a dog gives an indication of finding drugs, this gives the police reasonable grounds to suspect you have drugs, and they will be entitled to search you and detain you. The police must ensure that the sniffer dog is under control and that the dog does not unnecessarily touch you during the search. Please note that it is not necessary for the dog to give an indication for the police to have “reasonable grounds” and for a search to be lawful.
Where can sniffer dogs be used?
The police have the power to search for drugs using sniffer dogs in or around an area where alcohol is sold; where patrons enter or exit a public event like a sporting event, concert, dance party or parade; on public transport, in a station or at a bus stop; and at any public place in Kings Cross precinct.
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?
The police powers law sets out how police can conduct a search. There are some safeguards in place which police must comply with if they do decide to search you, particularly regarding strip-searches. However some rules are guidelines which police only have to comply with so far as it is reasonably practicable to do so.
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.
During the search
The police must conduct the least invasive kind of search practicable in the circumstances. i.e. no strip search unless it is actually necessary;
Police must conduct the search in a way that provides you with reasonable privacy and as quickly as is reasonably practicable;
Unless it is reasonably necessary, no search of the genital area or breasts (for female or female identifying trans and intersex people) is permitted;
You should be searched by an officer of the same sex,
You cannot be questioned while being searched if reasonably practicable; and
The police must 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, you are being strip-searched. There are further safeguards and restrictions on police actions for strip searches. The police cannot strip search as a matter of policy or use these powers as a matter of course. The police must 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 and during the search the police are not allowed to:
ask you to remove any clothing that is not necessary;
touch your body;
search any body cavities; or
search your genital area.
The police must comply with these rules. They are mandatory. However there can be disagreement over what clothes are necessary to remove.
There are further rules which are not mandatory and only need to be complied with as far as is reasonably practicable, including:
only police necessary for the search are allowed to be present or able to see you;
you must be allowed to dress as soon as the search is finished;
the search must be conducted in a private place where no one of the opposite sex can see you; and
only an officer of the same sex as you is allowed to conduct the search.
If a police officer believes that you may have drugs, anything dangerous or illegal in your mouth or hair they are allowed to ask you to open your mouth or move your hair. For any other search of a body cavity, the police need to have your consent or a court order.
The police officer found some drugs on me when they searched me. What should I do?
If something is found on you during a search, you must give the police your correct name and address if asked. You do not need to give any other information or answer other questions.
You should take note of the officer’s name, rank and station.
The police may take a range of actions. You may receive a caution, a court attendance notice or be arrested depending on the seriousness of the alleged offence.
The police officer didn’t find any drugs on me, but they still want my name and address. Do I have to give this information?
Police have the right to ask for your name and address. It is usually a good idea to give them these details, but you don’t have to give them anything else. Remember to take note of the officer’s name, rank and station.
If the police ask for your ID, you must give it to them if:
You are under 18 and they suspect you are drinking or carrying alcohol;
The police suspect that you have been involved in or witnessed a serious crime;
You are driving; or
The police intend to give you a move on direction.
If you feel you have been treated unfairly by police, you can find more information about complaining, here.
Can I have my friend with me when I’m being searched?
No. For an ordinary search (not a strip search) you cannot have a support person with you during the search.
However if the police conduct a strip search they will, if it is reasonably practicable in the circumstances, allow a parent, guardian or personal representative to be with you during the search if you request it.
If the strip search is being conducted on a child between the ages of 10 and 18, or on a person who has an impaired intellectual function, the search must be conducted, if it is reasonably practicable in the circumstances, in the presence of the child’s or person’s parent or guardian or, if that is not acceptable to the child or person, some other person (not being a police officer) who is capable of representing the interests of the child or person and who is acceptable to them.
Move-On Directions
Can a police officer tell me to move on?
Police can issue a ‘move-on’ direction to people in public places.
A police officer must have reasonable grounds to believe that your presence or conduct is:
Obstructing other people or traffic;
Harassing or intimidating other people;
Causing (or likely to cause) fear to other people (so long as a reasonable person would be afraid);
For the purpose of supplying a prohibited drug;
For the purpose of buying or obtaining a prohibited drug; or
Likely to cause injury to any other person, damage to property or otherwise give rise to a risk to public safety, or is disorderly, because you are intoxicated.
What counts as a public place?
The definition of ‘public place’ is very broad. Public places include:
Places open to everyone without restriction – e.g. streets, parks, beaches;
Places where there is some entry restriction – e.g. pubs, entertainment venues, train stations; and
Some places which are actually private property but do not belong exclusively to one person – e.g. car parks.
What kind of direction can a police officer give me?
Police can give many different directions, including telling people to stop fighting or to move away from a pathway. A direction can be given to an individual or a group of people. The direction must be reasonable in the circumstances to reduce or eliminate the obstruction, harassment, intimidation or fear, or to stop the sale/purchase of drugs.
When giving a direction, a police officer must:
Provide evidence that they are a police officer, unless they are in uniform;
Give their name and place of duty; and
Tell you the reason for the direction.
If the officer is giving a direction to one person only, they must give this information before giving the direction. If they are giving a direction to a group of people, they must give this information before the direction only if it’s reasonably practicable. Otherwise, they must provide the information while giving the direction or as soon as possible afterwards.
What if I don’t follow a direction?
If you don’t comply with a direction, the police must warn you that you are required by law to comply. If you still don’t comply, the police must give a warning that failure to comply is an offence.
If you continue not to comply, you can be fined $220. In some cases, the police may instead arrest you and charge you with failure to comply with a police direction. You will not have committed an offence if you can prove you had a reasonable excuse for not complying with the direction.
Do I have to give the police my name and address?
You have to give the police your name and address if they intend to give you a direction to leave a place (general or intoxication related). Before you do, the police are required to give you the same information and warnings as when they give you a direction. You do not have to give the police documentary ID.
Not giving your name and address, without a reasonable excuse, is an offence with a maximum fine of $220.