Police are not allowed to randomly search individuals or vehicles for drugs.
If they do and find drugs, the case may later be ‘thrown out of court’.
The law requires police to have a suspicion ‘on reasonable grounds’ that drugs are on a person or in a vehicle at that particular time before a search can be undertaken without a warrant; ss 21 and 36 Law Enforcement (Powers & Responsibilities) Act 2002 (th ‘LEPRA’).
What is a ‘Suspicion on Reasonable Grounds’?
The Courts have found that:
(a) A reasonable suspicion involves less than a reasonable belief but more than a possibility, that the drugs were present at the particular time,
(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown, and
(c) The source of the officer’s information and its content must be assessed in light of all surrounding circumstances.
See: R v Rondo (2001) 126 A Crim R 562.
Situations where there may not be a ‘reasonable suspicion’ include:
1. where police are patrolling a known drug area and decide to search someone because they appear to be nervous,
2. where a person is stopped for a Random Breath Test and appears to be nervous or agitated,
3. where police decide to search someone because he or she – or someone he or she is with – has previously been convicted of drug offences, or
4. any ‘random’ or ‘arbitrary’ search.
Situations where there may be a ‘reasonable suspicion’ include:
1. where police have observed what appears to be a drug transaction,
2. where police have received a report of recent drug activity including a detailed description, and that desciption matches the suspect and/or vehicle to be searched, or
3. where a person’s actions and demeanour are highly suggestive of drug possession, eg if a person is observed discarding or concealing an object.
Getting the charge dropped or thrown out of court
In the event that police did not have a ‘reasonable suspicion’ to search you, we will write a detailed letter to the Local Area Commander formally requesting that the case be withdrawn and advising that legal costs will be sought if they are not withdrawn.
If they refuse to withdraw the drug charges, we will fight to have them dismissed in court – we often have legal costs awarded in favour of clients upon whom police conducted illegal searches.
The law on excluding evidence
Section 138 of the Evidence Act says that a court is not to admit illegally or improperly obtained evidence (such as that derived from an illegal search) if the undesirability of admitting evidence obtained in that way outweighs the desirability of admitting the evidence.
In making that determination, the court is to take into account:
- The importance and value of the evidence to the overall proceedings.
- The extent to which the law was broken or the level of impropriety used in obtaining the evidence.
- Whether the breach of law or impropriety was done deliberately or recklessly.
- The ease or difficulty of obtaining the evidence without resorting to the impropriety or contravention used.
Our lawyers regularly persuade prosecutors and courts that evidence of drugs obtained through an illegal search is liable for exclusion, thereby having cases dropped and thrown out of court.