Contrary to popular belief, police officers are not allowed to just randomly search people, vehicles and premises for drugs, unless they have a good reason to believe that someone is in possession of an illegal substance.
If you have been charged with a drug offence, and you believe that police may have obtained their evidence against you illegally, it is best to speak to a drug lawyer as soon as possible.
You may be able to have your charges withdrawn, if you can prove that police acted in an illegal manner.
What is reasonable suspicion?
The leading definition of reasonable suspicion is R v Rondo. Reasonable suspicion is when police have a genuine cause to suspect that you may be carrying an illegal substance or prohibited item about your person, or in your vehicle, at that particular time.
To be classed as reasonable suspicion, the belief needs to be more than a possibility but need not amount to a reasonable belief.
This suspicion needs to have a factual basis, it can’t be based only on speculation or hearsay, and the police officer needs to have a reasonable suspicion at the time of stopping and searching the person or vehicle, not at a later time.
The evidence from the officer needs to be considered in the context of all the circumstances at the time.
What is not reasonable suspicion?
Reasonable suspicion does not include a previous drug conviction alone, or just appearing nervous or fidgety, or just being in the company of other people they suspect of having drugs, or just being in a known drug area, or even a sniffer dog making a positive indication for drugs.
There must be something more than just a single such factor, and a combination of factors may suffice.
When can police search me?
So, for example, if a sniffer dog detects the presence of drugs on your person, and there are additional factual matters which raise the police officer’s suspicions, this may be considered enough for a police officer to conduct a search.
So, if police believe they saw you putting drugs into your pocket, and a sniffer dog then detects the presence of drugs, this may be considered enough for a reasonable suspicion to be formed.
Equally, if several of the above-mentioned factors are present at the one time, and there is a subsequent positive indication, this may be enough for the search to be legal.
Police sniffer dogs are required to be kept under control, and not to touch you any more than necessary during the search.
What should I do if I think police searched me illegally?
If you believe you have been searched without reasonable suspicion, then you may be able to have any charges against you dismissed by reason of an illegal search.
The way it works is this: if an illegal search has occurred and something unlawful has been found during the course of that search (eg prohibited drugs), section 138 of the Evidence Act 1995 kicks into effect.
That section states that evidence derived from an unlawful search (eg evidence of drugs being found) must be excluded as evidence unless the desirability of admitting that evidence outweighs the undesirability of admitting evidence derived in that (unlawful) way.
The courts will take a range of factors into account when performing that ‘balancing act’, and a lawyer may well be able to persuade police to withdraw charges on that basis if their officers have conducted an unlawful search.
If you believe that police officers used unnecessary force to search you, you can also make a complaint.
If you have any doubts as to whether a police search was legal or not, contact a lawyer for advice.
An experienced criminal lawyer will be able to advise you whether or not the police had reasonable suspicion to search you, and if they didn’t, can help you apply to have any charges against you withdrawn, or help you make a formal complaint.