What is ‘reasonable suspicion’ under the law?
In order to perform a personal or vehicle search without a warrant a police officer must have a ‘suspicion on reasonable grounds’ that one or more circumstances exist for personal searches, these circumstances are that a person has in his or her possession or under his or her control:
- Anything stolen or otherwise unlawfully obtained
- Anything used, or intended for use, in the commission of an offence
- Any dangerous article which is in a public place, provided the article is being used, or was used, in the commission of an offence, or
- Any prohibited plant or prohibited drug.
For vehicle searches, these circumstances are that:
- The vehicle contains, or a person in the vehicle possesses or controls, anything stolen or otherwise unlawfully obtained
- The vehicle is being, was or may have been used in connection with an offence
- The vehicle contains anything used or intended for use in connection with an offence
- The vehicle is in a public place or school and contains a dangerous article that is being, was or may have been used in connection with an offence
- The vehicle contains, or a person in the vehicle possesses or controls, a prohibited drug or prohibited plant, or
- Circumstances exist in or near a public place or school that are likely to give rise to a serious risk to public safety and stopping, searching or detaining the vehicle may lessen that risk.
But what is a ‘suspicion on reasonable grounds’?
The leading case of R v Rondo puts establishes that:
- ‘A reasonable suspicion involves less than a reasonable belief but more than a possibility’
- ‘Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown’
- ‘What is important is the information in the mind of the police officer stopping the person or the vehicle… at the time he did so…’, and
- ‘[R]egard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances’.
Case law has found that any one of the following circumstances would not form the basis of a ‘suspicion on reasonable grounds’
- Appearing nervous or fidgety when approached by police
- Having a previous conviction for an offence that is the same or similar to the one the officer claims to suspect a person of
- Being in a known crime area, such as a known drug area when the officer claims to suspect a person of a drug offence, or
- Being the subject of a positive indication by a drug detection dog
However, a combination of the above factors may be sufficient, when viewed together, to form the basis of a “suspicion on reasonable grounds”.
A police officer does not need a suspicion on reasonable grounds to search a person or vehicle
If the person gives informed consent to the search.