Consenting to an Unlawful Search Will Make it Legal

By Paul Gregoire and Ugur Nedim

NSW police don’t have the power to randomly search people’s vehicles. If an officer does search a vehicle, they must have a suspicion on reasonable grounds for doing so.

The police powers to stop and search people and their vehicles without a warrant are contained in the Law Enforcement (Powers and Responsibilities) Act (LEPRA) 2002.

Requirement of reasonable suspicion

Section 21 of the LEPRA provides that a police officer may stop and search a person or anything in their possession without a warrant if he or she suspects on reasonable grounds that the person has anything stolen or otherwise illegally obtained, anything used or intended to be used in an offence, any dangerous article or illegal drug.

Section 36 of the LEPRA relates to motor vehicles. It similarly states that an officer may stop, search and detain a vehicle without a warrant if they have a reasonable suspicion that it is has been used in an offence, contains stolen items, is carrying anything used, or to be used, in an offence, or is carrying illicit substances.

Officers can also search a vehicle if it is in a public place or in the vicinity of a school, and they reasonably suspect it contains a dangerous item, or is putting the public at risk.

Illegal search

A search will ordinarily be illegal where there was no such reasonable suspicion, and evidence found as a result will be liable to exclusion by the courts. For example, evidence of drugs being located may be thrown out of court, leaving the prosecution without a case.

The provision for excluding unlawfully obtained evidence is found in section 138 of the Evidence Act 1995.

That section provides that evidence “improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”

However, it is important to bear in mind that an otherwise illegal search will become lawful if the subject of the search provided informed consent.

For that reason, it is always prudent to politely decline consent by calmly saying something like, “With respect, I don’t agree to you searching me [or, if relevant, my car/bike/bags]”.

A case in point

If Troy Leonard had been aware of this when pulled up on the Sturt Highway by a police officer for a random breath test at 12.30 am on 28 April 2000, things may have turned out differently for him.

After breathalysing Mr Leonard, Constable Barnes asked to search the hire car he was driving. The officer claimed that a lot of vehicles like his were being used to transport illicit substances along that stretch of the highway. When asked, Leonard replied, “Go for it. There is nothing in here, mate.”

However, there was something in there. The officer found a number of bags containing cannabis in the boot of the car.

When the officer later told the court about the incident, he had to recall the whole conversation, as although he had a tape recorder in his vehicle, he hadn’t used it whilst speaking with Mr Leonard.

The charges

Mr Leonard’s hearing commenced in the Local Court on 5 February 2001. He was charged with one count of supply of a prohibited drug, contrary to sections 25 and 29 of the Drug Misuse and Trafficking Act 1985 (the Act).

As the matter was dealt with in the Local Court, the maximum penalty for the offence was 2 years imprisonment and/or a $5,500 fine.

Leonard was also charged with two counts of possession of a prohibited drug, under section 10(1) of the Act. The offence carries a maximum penalty of 2 years imprisonment and/or a $2,200 fine.

Case thrown out of court

According to Local Court Magistrate Dowd, there were four issues regarding whether the cannabis located in the boot was admissible as evidence. The first was whether Constable Barnes had a reasonable suspicion to conduct the search.

The LEPRA had not yet been enacted in 2000. The constable used the search powers under section 37(4) of the Act, which outlined that an officer “may stop and search any vehicle in which” they reasonably suspect contains an illicit substance. This section has since been repealed.

His Honour found that even though the stretch of the Sturt Highway where Leonard was stopped was a well-known drug route, and drugs were frequently transported in hire cars, this did not amount to a reasonable suspicion to search the vehicle.

The second issue was whether Mr Leonard’s consent to the search had the effect of making it lawful. The magistrate ruled that it didn’t, as while Leonard was aware the search was for drugs, he wasn’t informed that he had the right to refuse the search.

Admission

The third issue concerned the provisions that had been set out in section 108 of the Criminal Procedure Act 1986.

The same provisions are now contained in section 281 of that same Act, which provides that in the case of an admission being made by a person, there must be a tape recording of the exchange available to the court, or a reasonable excuse as to why a recording was not made.

Magistrate Dowd reasoned “that any statements made by an accused in these charges giving consent to search is a representation adverse to his interests,” and therefore an admission. And as there was no recording, nor a reasonable excuse for not recording, Mr Leonard’s statement was inadmissible.

An unlawful search

The last issue involved the lawfulness of the search. The magistrate reasoned that if the search of the vehicle was illegal, then section 138 of the Evidence Act would render the evidence of drugs inadmissible.

His Honour referred to the 1992 High Court case Pollard versus the Queen, in which police officers were found to have carried out an illegal search that involved “a deliberate or reckless breach of a statutory requirement.”

Relying on that case, His Honour excluded the evidence found during the search of Mr Leonard’s vehicle.

“I do not consider objectively the facts were such as could reasonably justify suspicion, nor was the consent given informed consent,” Magistrate Dowd found on 6 March 2001. “I therefore find the search of the motor vehicle to be an illegal search, and refuse to admit the evidence pursuant to section 138.”

DPP Appeals

The Director of Public Prosecutions appealed the findings of the magistrate to the NSW Supreme Court on 30 July 2001.

Justice James of that court noted that the DPP did not challenge the magistrate’s finding that Constable Barnes did not have a reasonable suspicion to carry out the search. His Honour ultimately found that the magistrate made errors on his three subsequent points. The other justices agreed.

In regard to Mr Leonard’s consent to the search, Justice James cited the 1992 case of Anderson versus the Judges of the District Court of NSW. During that case, Justice Kirby stated, “the giving of a proper consent can do away with the need to form a reasonable suspicion.”

Justice James agreed with that statement, meaning that although Constable Barnes didn’t have a reasonable suspicion to search the car, the fact that Mr Leonard had provided consent rendered it legal.

Justice James found “that the magistrate erred in law in holding that the consent given by the defendant to the police officer to search his vehicle was not a valid consent, because it was not an informed consent.”

Not an admission

His Honour further found that the consent provided by Mr Leonard was not an acknowledgment of guilt – it was simply an agreement to the search, and therefore, was not inadmissible under the provisions of section 108 of the Criminal Procedure Act.

According to His Honour, the magistrate made an error when he based his reasoning on the “deliberate or reckless” breach or disregard of legal requirements by officers in the Pollard case, as there was nothing about the behaviour of Constable Barnes to warrant this.

Constable Barnes would only have been acting with “deliberate or reckless” disregard of legal requirements if it was in relation to the consent he had obtained from the constable, His Honour found.

The justice noted that the magistrate had made an error by finding that the officer’s impropriety was “deliberate or reckless” without explaining why this was the case.

The judgment

On 14 September 2001, Justice James granted the DPP’s appeal. His Honour set aside Magistrate Dowd’s decision and ordered that the case be remitted to the Local Court for determination in accordance with the law.