If you are subjected to a search by a police officer, you may find it daunting and uncomfortable. However, it may be useful to understand your rights when this occurs and the circumstances when a police officer is allowed to conduct a search. In New South Wales the Law Enforcement (Powers and Responsibilities) Act 2002 (the Act) describes the different types of searches that may be conducted and on what basis.

Power to search without a Warrant

Section 21 of the Act provides that a police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exist:

1. the person has in their possession or control anything stolen or otherwise unlawfully obtained,
2. the person has in their possession or under control anything used or intended to be used in connection with a relevant offence,
3. the person has in their possession or under their 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; or
4. the person has in their possession or control a prohibited drug or plant.

In addition, if a police officer is conducting a search on the basis of one of the factors described above, and suspects that something may be concealed in an individual’s mouth or hair, the officer can also open the individual’s mouth to enable it to be searched or to shake, or otherwise move the individual’s hair.

A police officer may also search a person if that person has provided the police officer with consent to do so.

Power to Search after an Arrest

If a police officer arrests a person for an offence or under a warrant, or is present at the arrest, then they have the power to search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything:

1. that would present a danger to a person, or
2. that could be used to assist a person to escape from lawful custody, or
3.  that is a thing with respect to which an offence has been committed, or
4. that is a thing that will provide evidence of the commission of an offence, or
5. that was used or is intended to be used, in or in connection with the commission of an offence.

When can a Police Officer Conduct a Strip Search?

Section 31 of the Act gives police the power to conduct a strip search if they suspect on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary. If the search is carried out at a police station, they only need to suspect on reasonable grounds that the search is necessary.

If a police officer decides to conduct a strip search, the officer must as far as reasonably practicable, comply with the following:

1.  the strip search must be conducted in a private area,
2. the strip search must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched,
3. the strip search must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search.

A strip search cannot be conducted on a person who is under the age of 10 years. If the person if between the ages of 10 and 18, a parent, guardian, or another acceptable person must be present during the search.

Pannu Lawyers are located conveniently close to Blacktown Local Court and appear daily in Local Court of NSW, District Court of NSW and the Supreme Court of NSW. If you are charged with criminal offences and/or traffic offences, call our office on 02 9920 1787 to make an appointment.