Contrary to what many people believe, the police are not just allowed to search anybody at any time.
If police approach you and request to search your person, vehicle or property, in many situations you are perfectly well within your rights to refuse.
Any evidence that is gathered against you in an unlawful police search can’t legally be used against you in court, and having knowledge of this may mean that you can successfully get charges against you reduced, or withdrawn altogether.
Here are a few of the circumstances when you are entitled to refuse a police search in NSW:
There are no grounds for ‘reasonable suspicion’
In order to lawfully search a person or their property, police need to have a ‘reasonable suspicion’ that the person has illicit drugs or other prohibited items on them or their property.
Reasonable suspicion means there must be a factual basis for their search; they can’t rely on hearsay or personal opinion.
Some of the circumstances where reasonable suspicion does not apply are if you are in the presence of someone the police suspect of carrying illicit drugs, or if you seem nervous or tense during a random breath test.
Drugs are not the only things police can have ‘reasonable suspicion’ that you possess.
They can also search you if they have reasonable suspicion that you are carrying stolen property or weapons.
They have not obtained your consent
If police have no reasonable grounds for suspicion they are not allowed to search you without your consent.
This must be clearly stated rather than implied.
To obtain your consent lawfully, a police officer has to explain that they want to search you, what will be involved, and ask if you consent.
If they have no reasonable grounds for suspicion, and you don’t want to be searched, you can refuse your consent.
If they don’t have a warrant to search your property
Police can’t enter and search your property without a search warrant. If police try to enter your home, or other property that you own, always ask to see their search warrant first.
The same rule of reasonable suspicion applies to vehicles too.
Police can’t just randomly stop your vehicle and search it for drugs or other prohibited items, they need to have a fact-based reason to believe that you are carrying something illegal in your car before they are allowed to search it.
What should I do if I believe that police have searched me illegally?
If you are facing charges against you as a result of police evidence you believe was obtained through illegal methods, it is important to seek legal advice as soon as possible.
Your criminal lawyer can write to the police officers involved, and request that the charges be withdrawn.
In many cases, this will be successful.
If the police still insist on continuing to pursue the charges, your lawyer can help you present your case in court and potentially avoid a criminal conviction.
If you aren’t sure whether police have acted lawfully towards you when searching your person or property, speak to a criminal defence lawyer for clarification.
Make sure you understand your legal rights when it comes to police searches, and you may be able to avoid getting an unlawful or unfair criminal conviction.