Never Consent to a Pat Down, Car Search or Strip Search

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By Paul Gregoire and Ugur Nedim

“Go for it. There is nothing in here,” was the response Troy Leonard gave to Constable Geoffrey Barnes, when he asked to search the man’s car on the Sturt Highway in April 2000. Barnes had pulled Leonard over to breathalyse him and remarked that the road was notorious for drug transportation.

On searching the boot of the vehicle, Constable Barnes found several of bags of cannabis. And Leonard ended up in court on drug supply charges. But, the magistrate found four reasons as to why the search was unlawful, which rendered the evidence inadmissible and Leonard was not convicted.

However, the Director of Public Prosecutions appealed the outcome to the NSW Supreme Court. And it found that because Leonard had provided consent, it led the unlawful nature of the search to no longer be of relevance and the defendant was sent back to face another magistrate.

Politely refuse

This is an important aspect of police searches to be aware of. If you do consent, when an officer asks whether you agree to a warrantless search of your person or a vehicle, then you’re also providing that the search is legal, regardless of whether the officer follows correct protocol or not.

During Leonard’s appeal case, this premise was supported in the citing of NSW Supreme Court Justice Michael Kirby, who was quoted in 1992’s Anderson versus NSW District Court Judges as saying, “the giving of a proper consent can do away with the need to form a reasonable suspicion.”

In relation to this, the Redfern Legal Centre’s The Law Handbook advises that “if police want to search you, the appropriate thing to do is to say clearly that you do not want to be searched, and that you want that written down”, so police cannot claim later that you did consent to the search.

Reasonable suspicion

The police powers to stop and search people without a warrant are contained in the Law Enforcement and Responsibilities Act 2002 (NSW), which is also known as the LEPRA. As repeatedly set out in this legislation police must hold a reasonable suspicion to undertake such procedures.

Section 21 of the LEPRA provides that an officer may stop and search a person without a warrant if they suspect on reasonable grounds that the person is in possession of stolen goods, anything used or to be used in a crime, any dangerous article, or any illicit substances.

Section 36 of the Act allows an officer to stop and search a vehicle without a warrant if they have a reasonable suspicion that it might contain stolen items, or it has been used in an offence, as well as if it’s carrying anything used or to be used in a crime or any illegal drugs.

And it is the requirement that officers have a reasonable suspicion in conducting both of these types of warrantless searches that officers can often get wrong, which leaves it open for a lawyer to prove in court that a search was illegal.

Unreasonable suspicion

The authority on reasonable suspicion is 2001’s Regina versus Rondo. It found that reasonable suspicion should involve less than a reasonable belief, but more than a possibility. And there should be some factual basis to the suspicion.

The case involved John Rondo being pulled over in his mother’s sports car in 1999, after officers ascertained it wasn’t his vehicle. The police then searched the car and found cannabis in the glovebox. And a subsequent search of his home resulted in the seizure of 59 plants.

The NSW District Court found Rondo guilty of drug supply and cultivation of a prohibited plant. However, on appeal, it was found that a young man driving someone else’s sports car was not sufficient to give rise to a reasonable suspicion and warrant the stopping of the vehicle.

So, this led to Rondo getting off. Section 138 of the Evidence Act 1995 (NSW) provides that evidence obtained in contravention of the law is inadmissible. This is unless the circumstances warrant that the evidence should still apply. And in Rondo that wasn’t the case.

Abolishing consent

Right now, the use of strip searches by NSW police has come under intense scrutiny, both due to their prevalence and unlawfulness. The UNSW report Rethinking Strip Searches by NSW Police found that over the last 12 years strip search use has increased twentyfold.

UNSW law academic Dr Vicki Sentas co-authored the report, which was commissioned by the Redfern Legal Centre. She explained at its launch that “currently, if someone were to – in the police view – consent to a strip search, police don’t need to legally turn their minds to meeting the criteria”.

The tenth recommendation of the report is that given the nature of strip searches, people should not be able to consent to them. And further the law should be amended so that “police must be able to justify a strip search in accordance with the legal criteria in all cases”.

“We think the law should be changed to make sure police do have to meet the legal criteria every time,” Dr Sentas stressed. “We don’t think it is possible in the particular circumstances in which police are directing you to do something that consent is possible.”

General consent doesn’t apply

Subsection 29(2)(b) of the LEPRA sets out that an individual consenting to a general search does not automatically apply to a strip search. A person must specifically consent to a strip search for their agreement to be applicable.

While section 31 stipulates that when a strip search is being carried out in the field, an officer must have a reasonable suspicion and “the seriousness and urgency of the circumstances” must make the procedure necessary. Although, officers aren’t applying these requirements to all searches.

And even though, police documents outline that a drug dog indication is not enough on its own to warrant reasonable suspicion, officers often rely on them as the sole reason for a search. And a strip search should never be carried out prior to an initial external or pat-down search being conducted.

Comply with an officer

“Strip searches are not a normal part of policing. Strip searches are not meant to be a normal part of drug policing,” Dr Sentas further emphasised during the report launch. “Good policing relies on investigation. Strip searches are not an investigative tool.”

However, pat-downs and strip searches are both routine now. So, it’s best to remember that while you should decline consent and ask the reasons as to why you’re being searched, you should go along with an officer’s orders, because not complying can result in a charge of resisting arrest.

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