Much like arrests, in NSW the power of police to stop and search people is governed by law.

Police do not have the power to stop and search someone for no reason and if a police officer does not comply with the law when performing a stop and search, this may give rise to an action against police, or may mean that anything found on you (or in your vehicle) was illegally obtained and able to be excluded in Court if you are charged with an offence.

 

The power for police to stop and search without a warrant comes from the same piece of legislation as the power of arrest; specifically, the Law Enforcement (Powers and Responsibilities) Act 2002, or LEPRA for short. Section 21 of LEPRA sets out the power for police to stop people and section 36 of LEPRA sets out the power to stop vehicles. Each of the sections are quite similar and create three separate powers for police:

-        To stop a person or vehicle;

-        To search a person or vehicle; and

-        To detain a person or vehicle.

As with the power to arrest, the power to stop and search has limitations.

 

Firstly, the officer needs to provide evidence they are a police officer (unless in uniform), to provide you their name and place of duty, and the reason for the exercise of their power. This is important for stop and search cases because police need to have “reasonable suspicion” for the stop and search to be legal.

 

For stopping and searching of people, police need to have formed a reasonable suspicion that:

-        The person has in their possession or under their control anything stolen or otherwise unlawfully obtained;

-        The person has in their possession or control anything used in or intended to be used in or in connection with the commission of an offence;

-        The person has in their possession or control in a public place a dangerous article that is being or was used in connection with the commission of an offence; or

-        The person has in their possession or or control, in contravention of the Drug Misuse and trafficking Act 1985, a prohibited plant or a prohibited drug.

 

For vehicles:

-        The vehicle contains, or a person in the vehicle has in their possession or under their 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 an offence;

-        The vehicle contains anything used or intended to be used in or in connection with the commission of an 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 connection with the commission of an offence;

-        The vehicle contains, or a person in the vehicle has in their possession or control a prohibited plant or prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985; or

-        Circumstances exist on or in the vicinity of a public place or school that are likely to give rise toa serious risk to public safety and that the exercise of the powers may lessen the risk.

 

But what does that all mean?

 

It means that the police before stopping the person/vehicle must suspect on reasonable grounds that the person or vehicle (or someone in the vehicle) is committing or has committed a crime, or that the vehicle poses a serious risk to safety in or near a public place, AND that there is evidence of that crime on the person or in the vehicle.

 

Police need to have the relevant state of mind at the time of the stop and cannot form it at some later stage; however, they can form the relevant state of mind if they have stopped you for some other legal purpose and then form a “reasonable suspicion” about one of the circumstances above.

 

What Should I Do if I’m Stopped?

If you’re stopped and you’re not sure why, you should ask the police officer why you’ve been stopped. Be polite and ask for the officer’s name and place of duty, as well as why they’re stopping you (and searching you if they have indicated they are going to do so). Record, the interaction, or have a friend record the interaction for you. Do not consent to police searching you, a lot of times police know they probably don’t have enough to stop and search you but will stop you to say hello and then ask you to comply with a search. A stop and search that you have voluntarily complied with in most cases would be found to be legal.

 

If police have indicated that they intend to search you (either without your consent or pursuant to their powers of stop and search) ask them why. It’s important to try to get the police officers to give you information you can refer to later if the need arises. Don’t be argumentative.

 

Remember to exercise your right to silence. Don’t answer any questions (apart from providing your name, address and drivers licence if required) and ask to speak to a lawyer if you’re arrested. Don’t participate in an interview until you’ve had the chance to get some legal advice.

 

RBT

Most people would have had the unpleasant experience of being followed by a police officer, only to (some time later) had the officer put their lights on and pull you over for the purpose of a random breath test (RBT). You probably even thought to yourself “there’s nothing random about this!” and you would probably be right.

 

Police have broad powers under the Road Transport Act 2013 to pull over drivers on public roadways and subject them to RBT. As mentioned above, once you are stopped for a legal purpose, the officer can then form a reasonable suspicion and proceed to search the vehicle. It is illegal for police to use RBT as an excuse to pull a vehicle over for the purpose of conducting a search or gathering information to justify the searching of a vehicle. If a police officer pulls you over for RBT, walks around the vehicle and says they are suspicious enough to search the car and do not perform the RBT, you may be able to prove that the police officer has not exercised their powers lawfully.

 

If you are stopped and searched by police, there are strict requirements police need to comply with in order to preserve any evidence they obtain as a result of that search. If the police officers don’t comply with the law, the evidence may be deemed illegally obtained and therefore inadmissible if the matter goes to court.

 

If the police don’t exercise their powers correctly and are merely using the stop and search to harass you, it may give rise to action against police (depending upon the circumstances).

 

Remember, do not consent to any search, record the interaction, always obtain the name and place of duty of the officer and ask them to tell you why they’re exercising their power.

 

Don’t be rude or argumentative to police and comply with their directions, particularly if you’re arrested.

 

Exercise your right to silence and make sure you tell police you want to speak to the team at Mitchell and Co Lawyers to get legal advice at the earliest available opportunity.

 

You can call us on (02) 8507 2091 at any time of day or night.