Powers To Stop And Search


Police may stop and detain you and conduct a frisk search or ordinary search and seize items from you only if, on reasonable grounds, they suspect that you possess something relevant to a serious offence or something stolen or otherwise unlawfully obtained and it is necessary, serious and urgent to stop the item from being concealed, lost or destroyed.

During a search, police can seize evidential material in relation to any matter if they suspect, on reasonable grounds, that it is necessary, serious and urgent to prevent its concealment, loss or destruction.

Search of Cars and Homes

Cars and trucks and containers in them can be stopped and searched. This must generally be done in a public place and police may use necessary and reasonable force, but shall not damage the car or container by forcing open any part unless any person apparently in charge of the vehicle has been given a reasonable opportunity to open that part or it is not possible to give any such person that opportunity.

Police must not detain a person for longer than is necessary and reasonable to conduct a search.

Police must make a written record of the stop and search, recording the date, time and place, details of the operation (if any), any known details of the person and the grounds for suspecting the relevant matter.

A police officer who arrests a person at premises for an offence, or who is present at such an arrest, may seize things in plain view at those premises that the police officer believes on reasonable grounds to be evidential material in relation to any offence or seizable items.

Seizable items are defined in the Crimes Act as anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody. Police can also search for drugs and items suspected to have been stolen.

Frisk Searches

The test for allowing a police officer to do a frisk search on someone who has been arrested is whether the officer suspects on reasonable grounds that it is prudent to do so to ascertain whether the person is carrying any seizable items.

An ordinary search may be performed on a person if a police officer suspects on reasonable grounds that an arrested person has been carrying evidential material in relation to any offence or a seizable item.

An ordinary search or a frisk search of a person shall, if practicable, be conducted by a person of the same sex as the person being searched.

An ordinary search can be carried out at a police station. So can a frisk search, but only if a police officer of the rank of sergeant or higher, or one who is for the time being in charge of the police station, suspects on reasonable grounds that it is prudent to do so.

Strip Searches

A strip search may be conducted at a police station if a police officer suspects on reasonable grounds that a visual inspection of the person’s body will provide evidence of the person’s involvement in an offence and such a search is necessary to recover evidence.

A police officer of the rank of superintendent or higher must approve the conduct of the search. This can be done by telephone, telex, fax or other electronic means.

A person can consent in writing to a strip search and the search may be conducted in the presence of a doctor, who may assist in the search.

Necessary and reasonable force can be used.

Strip searches must be done in a private area and by a police officer of the same sex as the person being searched and out of the presence or view of a person of the opposite sex.

Strip searches must not be conducted on a person who is under 10.

If the person being searched is at least 10 but under 18, or is incapable of managing his or her affairs, a strip search may only be conducted if the person has been arrested and charged or if a court orders that it be conducted and the search must be conducted in the presence of a parent or guardian. In deciding whether to make such an order, the court shall have regard to the seriousness of the alleged offence, the age or any disability of the person and any other matters the court thinks fit.

Strip searches do not involve searching a person’s body cavities and shall not involve the removal of more garments than the police officer conducting the search believes on reasonable grounds to be necessary to determine whether the person has in his or her possession the item searched for or to establish the person’s involvement in the offence; and must not involve more visual inspection than the police officer believes on reasonable grounds to be necessary to establish the person’s involvement in the offence.

If no police officer of the same sex is available to conduct a strip search, any other person of the same sex can be requested by police to conduct the search.

Fingerprints, Recordings, Handwriting and Photos

“Identification material” means prints of a person’s hands, fingers, feet or toes, recordings of the person’s voice, samples of the person’s handwriting or photographs of the person.

Only a police officer of the rank of sergeant or higher, or one in charge of a police station, may take identification material and only if one or more of the following applies:

  1. the material is fingerprints or photographs;
  2. the person consents in writing;
  3. the police officer believes on reasonable grounds that it is necessary to do so to establish who the person is, or identify the person as the person who committed an alleged offence or to “provide evidence of, or relating to, the offence”.

Police can use necessary and reasonable force, but must not take material from a suspect who is incapable of managing his or her affairs and has not been arrested and charged, unless a court orders that the material be taken.

Police may only take identification material from a person under 18 if directed to do so by the Director-General of Community Services. The material can be hand or fingerprints, a photo or video recording and a buccal swab or saliva sample.

Anything taken from a young person (over 10 but under 18) must be destroyed if the young person is found not guilty (other than on the ground of unsoundness of mind) or if a proceeding is discontinued or dismissed.

For adults, the material must be destroyed if proceedings against a suspect have not been instituted inside 12 months. This period can be extended by a magistrate, on application by police, only for special reasons.

Identification material must be destroyed as soon as practicable if a person is acquitted of the relevant offence (and no appeal is lodged, or if the acquittal is confirmed on appeal) or if the person is found to have committed the offence but the court recorded no conviction, unless an investigation or proceedings in relation to another offence to which the identification material relates is pending.

 

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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