The Stop and Search Power of NSW Police – What Are Your Rights?

Introduction
One of the most common questions we get from our clients is ‘did the police have the right to search me?’ The answer to this question could be very important. If the police did not have the power to search you, this could lead to evidence obtained as a result of the search not being able to be used against you. A police search without the power to do so could also give rise to a case against the Police. This is why it is very important you know your rights and how to protect them when confronted with a police officer who wishes to stop and search you.
When can a police officer stop and search me?
The power of a police officer to stop, search and detain a person is contained in section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002. This section states that 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 exist:
  1. the person as in his or her possession or control anything stolen or otherwise unlawfully obtained,
  2. the person has in his or her possession or control anything used or intended to be used in or in connection with the commission of a relevant offence,
  3. the person has in his or her possession or 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, or
  4. the person has in his or her possession or controls a prohibited plant or a prohibited drug.
The issue that is often raised with the application of the stop and search power is whether the police officer did, in fact, suspect on reasonable grounds that any of the above circumstances existed at the time that they stopped and searched a person.
‘Suspects on Reasonable Grounds’ – what does this mean?
An officer ‘suspects on reasonable grounds’ if they have what is termed a ‘reasonable suspicion’ of one of the above matters. Many people wonder what the term ‘reasonable suspicion’ means. It was held in the judgment of the NSW Court of Criminal Appeal in R v Rondo at [53] that ‘a reasonable suspicion involves less than a reasonable belief but more than a possibility’ and that ‘there must be something which would create in the mind of a reasonable person an apprehension or fear of one of the states of affairs covered by [section 21]’. There must also be ‘some factual basis for the suspicion’.
The question in essence is whether the information that the police officer has ascertained has ‘afforded reasonable grounds for the suspicion which the police officer formed’.
An example of how this ‘reasonable suspicion’ test works comes from the case of R v Rondo. In this case, Mr Rondo was driving a Toyota Supra with panel damage to the driver’s side. The police officers drove alongside the Supra and asked Mr Rondo, “Is this your car?” to which he replied “No”. Following this, the police moved behind the vehicle and engaged the sirens. Mr Rondo then stopped.
It was held in this case that the stop of Mr Rondo was unlawful because the police did not suspect on reasonable grounds any of the relevant circumstances that would have entitled the police to stop the vehicle. For this reason, evidence of drugs found as a result of a search of the vehicle was excluded pursuant to section 138 of the Evidence Act 1995 as evidence that was illegally obtained. This is where section 21 becomes very useful. Police require reasonable suspicion to stop you in the first place. If they don’t have the requisite reasonable suspicion to stop you, then any evidence obtained after that stop may be illegally obtained evidence.
It is very useful to be aware of your rights when it comes to police searches. If the police stop and search you without the power to do so, even though you may technically be guilty of the offence, all of the evidence may be inadmissible.
Longton Legal employs criminal defence lawyers with vast experience in assessing the actions of police and the implications of those actions for your case. If you have been charged with an offence and feel the police were unjustified in stopping and searching you, please do not hesitate to contact us for a free case appraisal.

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