Stop Detain Search: When is a Search Legal?

Police Powers

The Police have a difficult job.

We all know the stressful situations Police can be thrown into whether incidents of domestic violence or arriving at the scene of horrific car accidents.

We all look to the Police to protect us and we want them to have the power and the means to do that.

However, there has to be a balance between giving the Police the appropriate powers and protecting the civil liberties of the average person.

Proactive policing versus civil liberties

The Police have a very strict code of conduct in the Law Enforcement (Powers and Responsibilities) Act (LEPRA) which sets out what their powers are and how these interface with the Crimes Act 1900 NSW.

If a police officer is engaging in a search of a vehicle, a person or premises such as a home or office, the Police must comply with LEPRA and the safeguards that have been put in place to ensure that they are complying with the law and exercising their powers appropriately.

What are the RULES of STOP SEARCH DETAIN?

In summary, the Police may “without a warrant, stop, search and detain a person” if the police office suspects on reasonable grounds that the person may have stolen or illegal goods or anything which may be used to commit a crime.

It often becomes a matter of judgment for the police officer of what constitutes “reasonable grounds”.

If a police officer does stop a person they must gain the consent of that person to the search and give the statutory warning about any statement they make.

Intention and Reasons for Search

What are “reasonable grounds”?

Knowledge of a criminal background is not an excuse or “reasonable” ground to conduct a search. In the case of O’Connor v R [2010] NSWDC, Corey O’Connor had been stopped by police because of his criminal record involving dishonesty offences.

The Court stated that “Parliament could not have intended that if police officers were aware of a citizen’s criminal record, that would mean the police officer could stop, detain and search a person at any time on the basis of a reasonable suspicion that a person might have possession of stolen goods.”

The Court said that if Parliament intended that, it would have written the law to say that.

RBT is not an excuse for STOP SEARCH DETAIN

There have been a number of cases where the Police have used legitimate powers in an inappropriate way such as using Random Breath Testing (RBT) to pull people over for the actual purpose of gathering evidence that might justify searching a vehicle.

In R v Buddee [2016] NSWCS 422 the Judge discussed the purpose of Random Breath Testing and whether it could ever justify a STOP SEARCH DETAIN misuse by Police.

“…the police cannot rely on a statutory RBT power to engage in “proactive” policing or satisfy a curiosity or hunch not amounting to a specific state of mind as required by LEPRA.”

The Judge concluded that using RBT as a ruse for a Stop Search Detain was an inappropriate form of “proactive policing” and could not be condoned by the Court.

“There is nothing to suggest that those powers have anything to do with matters other than road safety and offences committed under the Act and relating to road safety.”

ISSUE OF CIVIL LIBERTIES

McClintock DCJ also stated in the Buddee case that “There is no doubt that a lot of crime could be proactively prevented simply by providing the police with the power to interfere with every citizen on every occasion in every place, to allow them to arbitrarily stop and search anyone on a hunch or a suspicion. That is not a power they now have and such a power is antithetical to any free society.”

Driving while INTOXICATED

RBT is only relevant to criminal matters if the driving involves criminal activity such as driving when intoxicated or under the influence of illegal drugs.

In the 2019 case of R v Large, Judge Norrish stated that “The RTA provides a power to breath test… The provisions of this Act have nothing whatsoever to do with the exercise of police powers in the course of the investigation of criminal offences (except of course, intoxicated driving).”

WHAT IS PROACTIVE POLICING?

Underpinning the powers to stop and search there is a precondition for exercising this power: “The police officer must suspect on reasonable grounds’ of some sort of illegal activity or possession as outlined s21 and s36.”

Hence, the ruse of using the RBT is illegal. A police officer cannot and should not use the RBT power to pull people over for the real purpose of gathering evidence to justify searching the vehicle or the person.

What if you are CHARGED after being STOPPED?

If you are in the situation that you were stopped unlawfully, you may be able to argue that the Police acted unlawfully and that any evidence obtained in the STOP DETAIN SEARCH must be excluded in Court.

Each case will be decided on its facts. The Court will look at the seriousness of the alleged offence. The seriousness of any alleged misconduct by Police. The Court will also look at each step taken by Police and the Prosecution when bringing the Case to Court.

If the Prosecution is aware that the Police actions constitute misconduct and that there is a real chance that the Magistrate or Judge will not allow the evidence, then the case may be dismissed due to lack of evidence and/or also because of the Police conduct.

We have successfully argued in similar cases for the matter to be dismissed.

As the laws and regulations are complex it is important that you obtain legal advice.

This article is for information purposes only. It is not legal advice and should not be relied on.