WHEN CAN POLICE SEARCH YOU WITHOUT A WARRANT?

THE STRATEGY OF THE NSW POLICE FORCE

Police searches without a warrant are considered a deliberate strategy of the NSW Police Force’s “proactive policing,” with the intention of reducing crime. However, revelations of a culture within the NSW Police that encourages Police to boost search numbers as part of a statistics-driven strategy has raised fears by legal groups and experts that the approach encourages the unlawful use of police powers.

UNSW Professor Vicki Sentas, an expert in policing practices, stated that “I do think that it’s likely that the vast majority of searches in this state are conducted unlawfully.”

MADDEN V THE STATE OF NEW SOUTH WALES [2022] NSWDC 647

The concerns about the police searches without a warrant are not just reflected in the statements of defence lawyers, academics and advocates, but also by the words of Police officers who themselves were part of the “proactive policing” culture. Testimony from two officers who were involved in Ebonie Madden’s arrest, an arrest which a Court found had been unlawful and which had followed a police search that the Court also found unlawful, revealed a focus within the Nepean Proactive Crime team on chasing numbers of police searches linked to performance and productivity. Ebonie was awarded $320,000 by the District Court of NSW in December 2022, with the Court ruling that Police did not have reasonable grounds to justify conducting a search and that the “clear inference is that Darnton’s motivation was other than a legitimate exercise of police powers.” The Court also found that Ebonie had been subjected to malicious prosecution and false imprisonment.

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 (NSW)

The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), commonly referred to as LEPRA, provides Police the power to search individuals. Section 21 of LEPRA specifically states the circumstances in which Police are allowed to search a person without a warrant. It allows Police to search an individual without a warrant, if the Police suspect on reasonable grounds that any of the following circumstances exist:

the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,
the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,
the person has in his or her possession or under his or her 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,
the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985 , a prohibited plant or a prohibited drug.

WHAT ARE REASONABLE GROUNDS?

The legislation does not define “reasonable grounds”.

“Reasonable grounds” is defined in common law through the case of R v Rondo [2001] NSWCCA 540 as involving “less than a reasonable belief but more than a possibility.”

NEVER GIVE CONSENT

Never provide your consent to a search of yourself or your vehicle. Consenting will override potential illegality of a search and provide that the search is legal. In not providing consent, it is still important to comply with an officer’s orders, as not complying may result in criminal charges against you.

CONTACT US NOW FOR A FREE CONSULTATION

Our specialised Criminal Lawyers are a results-driven, client focused team that provides only the highest possible standard of experienced representation. Our record of exceptional results and regular appearances in high-profile cases involving police searches without a warrant makes us the best team to assist in your case.

If you have been searched by Police and require legal advice, call Criminal Lawyers Group anytime on 02 8815 8177 for expert advice from a senior criminal lawyer. We will provide an initial free consultation and work out a plan of attack in your case to give you the best change of obtaining the best possible outcome in your case.