By Paul Gregoire and Ugur Nedim
It’s hard know what the warmer months of 2020/21 have in store for the citizens of NSW. As last summer expired, large tracts of the country had burnt to the ground, and Sydneysiders had begun wearing facemasks to guard against the smoke hanging in the atmosphere.
Then just days into autumn there was a rush on facemasks, as the COVID-19 pandemic set in. The state’s population had to go into lockdown for months on end, and NSW police officers roamed the streets issuing steep fines for breaking public health orders.
The warmer weather has again arrived early this year. And while many in urban areas have taken to wearing facemasks regularly, they’re also back out on the streets. And this means those officers dressed in blue are out there in force exercising their powers to stop and search the public.
So, it’s wise to have an understanding about what officers of the law are actually empowered to do, and when they might be crossing the line.
The powers to stop and search individuals and seize items in their possession are set out in part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which is commonly referred to as the LEPRA.
Section 21 of the LEPRA outlines when police can stop and search someone without a warrant.
This is permitted when an officer “suspects on reasonable grounds” that an individual is in possession of a stolen item, anything used or to be used in a crime, a dangerous item, like a weapon, or they’re holding an illicit substance.
This section also permits an officer to seize and detain any of the types of items that justify conducting a personal search.
“Suspects on reasonable grounds” or reasonable suspicion is not defined in the legislation. The common law authority on reasonable suspicion is contained in the 2001 NSW Court of Criminal Appeal case R versus Rondo.
According to Rondo, “reasonable suspicion involves less than a reasonable belief but more than a possibility”. And this type of suspicion is not arbitrary, as there must be some factual basis for the officer to have it.
Section 30 of the LEPRA gives a general rundown of what an officer is permitted to do during a personal search.
An officer can quickly run their hands over the outside of a person’s clothing. They can require the removal of outer clothing, such as a coat, gloves, shoes, socks or a hat. Anything in a person’s possession can be searched. And a metal detector can be run along the outside of their clothing.
While carrying out such a search, section 21A of the LEPRA also permits officers to order a person to open their mouth for inspection or shake their hair. Officers cannot forcibly open a person’s mouth. And failure to comply with these requests can result in an individual being fined $550.
Section 23 of the LEPRA allows officers to search people in public or at a school if they have a reasonable suspicion they’re carrying a dangerous implement, which means a weapon, a knife, an object adapted to cause injury, menace someone or destroy property, or a laser pointer.
For the purposes of this section, being at a location known to be an area where there’s a high incidence of violent crime, may be taken into account when forming a reasonable suspicion. Usually, a high crime area is not a ground to base a suspicion upon.
In the case where police are exercising these powers on school grounds, an officer is permitted to search a student’s locker or their bag. And if it’s reasonably possible, the officer should allow the student to nominate an adult be present during a search.
On being taken into custody
NSW police may search an individual on arrest, according to section 27 of the LEPRA, if they have a reasonable suspicion they’re holding something that could endanger another, be used to attempt escape, could be evidence or they possess something that was used or was to be used in an offence.
Again, officers are provided with the ancillary powers to require the person being searched to open their mouth and shake their hair, under section 28 of the Act. And if the person being searched refuses, they can be fined $550.
While section 28A of the LEPRA provides officers with the ability to search a person once they have been taken into “lawful custody” and seize anything they find. This can be done at the station or any other place of detention, as well as prior to or during transportation to such a location.
The dreaded strip search
Many in the community might think having to take their clothes off in front of a police officer whilst out in public is something they don’t have to worry about. However, the sad truth is that strip searches are increasingly becoming an everyday occurrence.
Section 31 sets out the when and where of a strip search. If applied at a police station, an officer must have a reasonable suspicion it’s necessary to remove clothes as part of a search, while at any other location, “the seriousness and urgency of the circumstances” must warrant a strip search.
As to what can take place, section 32 stipulates that an officer must inform a person a strip search is about to happen, why this is the case, as well as ask for their cooperation in regard to it. A strip search must be done in private, as quickly as possible and in the least invasive manner.
An officer must not inspect the genital or breast area of a person being searched, unless they deem it necessary. Searching officers must be of the same sex as the person being searched. And if an officer of the same sex is not present, someone else of the same sex may be delegated to perform it.
A person being searched cannot be questioned at the same time as the strip search is happening. And if an item of clothing is seized, officers have to provide a replacement.
The rules of conduct
Section 33 of the LEPRA outlines the rules of conduct in relation to strip searches. These entail a strip search having to be carried out in a private area, not in the view of anyone of the opposite sex, and not in sight of anyone not required to be there for the purposes of the search.
If the person being searched is between 10 and 18 years old, or they have impaired intellectual functioning, a parent or guardian must be present, or a suitable replacement who isn’t a police officer.
However, these stipulations don’t apply if it’s thought necessary to prevent the destruction of evidence.
A strip search must not involve searching a person’s body cavities or touching them. It should not require any unnecessary removal of clothing. While if the person being searched permits it, a medical professional of the opposite sex may be present.
And section 34 of the LEPRA forbids NSW police officers from searching people under the age of 10 years old.
Never give consent
One final point to be aware of is when an officer signals that they’re going to perform a strip search, never give consent.
The reason being is that if officers don’t follow correct procedures and therefore the search was illegal, having given consent overrides that and makes the search lawful regardless.
Not having given consent can lead to a charge being dropped in the case where something illegal was found via a search that was unlawful, or it can permit taking civil action against police for performing an illegal search.