When a police officer is exercising their powers to search a person, their vehicle, premises or vessel they must comply with basic safeguards set out in the Law Enforcement (Powers and Responsibilities) Act. These include telling the person the reasons for the search and conducting the search in a way that ensures your privacy. This article outlines the various types of police searches that can occur in New South Wales and how they must be carried out.
When can police searches occur?
The situations where police may search a person are outlined below.
1. Stop, search and detain powers
The police may, without a warrant, stop, search and detain a person and anything in their possession or under their control. To fail or refuse to comply with an officer’s request to search you, without reasonable excuse, is an offence attracting a maximum fine of $550.
If the police have reasonable grounds and proceed to search a person, they may seize and detain all or some of the item(s) found while conducting that search.
To exercise the stop, search and detain powers, the officer must suspect on reasonable grounds that the person has in their possession either:
- Something stolen or otherwise unlawfully obtained.
- Something used or intended to be used in connection with the commission of an indictable, weapons, or firearms offence.
- Whilst in a public place, a dangerous article that is being or was used in connection with the commission of an indictable, weapons, or firearms offence.
- A prohibited plant or drug.
If the officer suspects on reasonable grounds that the item is concealed in the person’s mouth or hair, he or she may request that the person open theirr mouth and/or shake, or otherwise move, their hair. An officer cannot forcibly open a person’s mouth.
Seize and detain powers can also be exercised if a police officer who is lawfully on any premises (including vessels, vehicles and aircraft) finds a dangerous article on the premises and suspects on reasonable grounds that it is being or was used in connection with an indictable, weapons, or firearms offence.
2. Search powers in public places and schools
The police have the power to frisk search a person for blades and other dangerous implements (including a laser pointer) when they are in a public place or a school if they suspect on reasonable grounds that you have such an item in their possession. The police may confiscate the implements found.
In a school, a student may be requested to allow police to search any bag or personal effect that they are carrying and/or to search their locker at the school.
If it is reasonably possible to do so in conducting a search of a student in a school, the police must allow the student to nominate an adult at the school premises to be present during the search.
Failure to comply with lawfully made requests relating to such a search is an offence attracting a maximum penalty of $5,500.
3. Search upon arrest
A police officer may search a person at the time of your arrest if they suspect on reasonable grounds that it is prudent to do so in order to ascertain whether they are carrying anything that:
- would present a danger to a person, or
- could be used to assist a person to escape from lawful custody, or
- is a thing with respect to which an offence has been committed, or
- is a thing that will provide evidence of the commission of an offence, or
- was used, or is intended to be used, in or in connection with the commission of an offence.
If the police proceed to search a person in such a situation, they may seize and detain all or part of the item(s) found while conducting that search.
To fail or refuse to comply with an officer’s request to search a person, without reasonable excuse, is an offence attracting a maximum fine of $550.
4. Search while in lawful custody
A person may be searched while in lawful custody (whether at a police station or at any other place). The police may seize and detain anything found during that search.
5. Search warrants
A search warrant authorises any executing officer for the warrant to enter your premises to search for things connected with the particular offence(s) specified by the warrant. It gives the officer power to search any person found on the premises whom is reasonably suspected of having a thing mentioned in the warrant.
If you are the occupier of the premises, you must be informed of entry as soon as reasonably practicable. However, a covert search warrant may be executed without your knowledge.
A person executing a valid search warrant may seize and detain a thing (or thing of a kind) mentioned in the warrant or any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence.
It is an offence to obstruct or hinder the execution of a warrant attracting a maximum penalty of a fine of $1,100, two years imprisonment, or both.
6. Crime scenes and crime scene warrants
A police officer lawfully on premises may establish a crime scene and exercise certain crime scene powers without a warrant for up to three hours commencing from the establishment of the crime scene.
Powers to search, seize and detain require that the police suspect on reasonable grounds that it is necessary to do so to preserve, discover or gather evidence of the commission of the offence in connection with which the crime scene was established.
A crime scene warrant may extend the period for which crime scene powers can be exercised.
Crime scene powers include that the police may perform any necessary investigation to obtain evidence of the commission of an offence. This includes searching the premises and persons found on them.
It is an offence to obstruct or hinder the execution of a crime scene warrant attracting a maximum penalty of a fine of $1,100, two years imprisonment, or both. It is also an offence to fail to comply with a request made or direction given by a police officer at a crime scene attracting a maximum penalty of a fine of $1,100.
Types of police Searches
The police must conduct the least invasive type of search practicable in the circumstances. The types of searches in order from least invasive to most invasive are:
- Ordinary search – A search of a person or of articles in their possession and an examination of those articles. It may require the removal of an overcoat, coat or jacket, gloves, shoes, socks and hat.
- Frisk search – A search of a person conducted by quickly running the hands over the person’s outer clothing or by passing an electronic metal detection device over the person’s outer clothing. It includes an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person, including examination by passing an electronic metal detection device over those things.
- Strip search – These may only be conducted if the police suspect on reasonable grounds that it is necessary for the purposes of the search and that the seriousness and urgency of the circumstances require a strip search. The person may be required to remove all of his or her clothes and be subject to an examination of the person’s body (but not body cavities) and their clothes.
Safeguards: Privacy and Supervision – For all Types of Searches
In all types of searches, police must follow certain rules designed to protect the person being searched from violations of their rights. These rules relate to:
Who can conduct the search?
A search must be conducted by a police officer or other person of the same sex as the person being searched.
What the police must tell you
The police must tell you the reasons for the search, whether the person will be required to remove clothing and why this is necessary. They must ask for the person’s co-operation.
How the search is conducted
The search must be conducted in a way that provides reasonable privacy and it must be carried out as quickly as is reasonably practicable. The person must be allowed to dress as soon as a search ends (if clothing has been seized, the police must ensure that they are given reasonably appropriate clothing).
What parts of your body may be searched
The police cannot search the genital area or breasts unless they suspect on reasonable grounds that this is necessary.
Timing of the search
A search cannot be conducted while a person is being questioned.
Safeguards: privacy and supervision – for strip searches
The police must, as far as practicable in the circumstances, comply with the following rules:
- A child under the age of 10 cannot be strip-searched.
- A strip search is to be conducted in a private area.
- A strip search must not be conducted in the view of a person of the opposite sex to the person being searched or of a person whose presence is not necessary for the purpose of the search (however, a parent, guardian or personal representative may be present if the person being searched has no objection).
- A parent or guardian must be present for a strip search of a child between 10 and 18 years of age or a person with impaired intellectual functioning. If the person being searched objects, the search must take place in the presence of another person (other than the police officer) who is capable of representing the interests of the person.
- A strip search must not involve searching a person’s body cavities or examining the body by touch.
- A strip search must not involve the removal of more clothes than the person conducting the search believes to be reasonably necessary, and must not involve more visual inspection than is reasonably necessary.
- A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person being searched if that person has no objection to that person being present.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.