Police Search Powers NSW - Criminal Defence Lawyers Australia

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The law that covers the police search powers without a warrant for adults and children is mainly covered in parts 4 and 15 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’).

It’s important to note that police are NOT ALLOWED to search you if you are under the age of 10, according to section 34 of LEPRA.

Where police are trying to search you, and you are an adult or child aged at least 10-years, police are required to follow strict safeguards and rules. If these important safeguards are not complied with then any evidence obtained by police from an illegal search may be inadmissible in court, and ‘kicked out’.

Table Of Contents

Police Searches
Can Police Search You if You Consent?
General Search by Police Vs Strip Search by Police
Limitations and Rules on Strip Searches
Rules and Limitations on Any Type of Police Search
What Amounts to a Reasonable Suspicion According to the Law?
Your Rights with Police NSW
How Much Force Are Police Allowed to Use?
Taking Identification Particulars of Children
The Definition of a ‘Child’?

Police Searches

Can Police Search You Without a Warrant when it comes to Adults and Children aged at least 10 or more?

A police officer is allowed to stop, detain and search you if the officer forms a suspicion in his/her mind, and if that suspicion according to the court is based upon reasonable grounds, that you possess or control something:

Stolen or unlawfully obtained, or
Used or intended to be used in an offence carrying a maximum penalty of at least 5-years imprisonment (or other relevant offence), or
That’s a dangerous article in a public place that’s being used or was used in an offence carrying a maximum penalty of at least 5-years imprisonment (or other relevant offence), or
That’s a prohibited drug or plant in breach of the Drug Misuse and Trafficking Act.

Following this, a police officer is then allowed to seize and detain anything the officer finds as a result of the search if the officer suspects on reasonable grounds that it may provide evidence as to the alleged offence, or the thing in question is a thing that the officer forms a reasonable suspicion as something stolen or unlawfully obtained, or the thing is a dangerous article such as knife, firearms etc, or the thing is a prohibited drug.

The above is outlined in section 21 of LEPRA.

A police officer searching a person based on this, who also suspects on reasonable grounds that the person being searched is concealing something in the mouth or hair, will be allowed to direct that the person open his/her mouth, or even request he/she shake or move his/her hair to search that area. Failure to comply with this attracts up to a $550 fine, according to section 21A LEPRA. However, a police officer is not permitted to forcibly open the person’s mouth with his/her own hands.

Police Search in a Public Place or School

If a police officer forms a suspicion in his/he mind, being a suspicion which the courts interpret as reasonable that a person has possession or control of a dangerous implement unlawfully in the person’s possession or control, the officer is permitted to stop, search and detain that person if that person is in a public place or school.

This extends to allow a police officer to search a school student’s locker or school bag. But where this is done, the officer is required to allow that student to nominate an adult who is on the school premises to be present during the search, where reasonably possible, according to section 23 of LEPRA.

If the officer forms a reasonable suspicion that the implement found is a dangerous implement and is unlawfully in the student’s (or other person’s) possession, the officer is permitted to seize and detain it, according to section 23(5) of LEPRA.

A police officer is also permitted to seize and detain a dangerous article located in any premises including a home, building, car, or ship if the officer is both:

Lawfully on the premises or building etc, and
The officer forms a reasonable suspicion that the dangerous article is being or was used in connection with an offence.

A ‘dangerous implement’ includes’, a firearm, knife, or any substance capable of causing bodily harm or a laser pointer.

Police Search Upon Arrest or When You’re in Custody

Police Search if Arrested for an Offence

At the time of being arrested (or after) by a police officer, a police officer present at the arrest is permitted to search you if, and only if the officer forms a suspicion, provided that that suspicion according to law is a suspicion based on reasonable grounds that it is prudent to conduct the search for purposes of finding out whether you are carrying anything:

Dangerous, or
That could be used to help you escape from custody, or
That is something connected to the alleged offence committed, or
That will provide evidence relating to the alleged offence, or
That’s used or intended to be used in connection with the alleged offence.

Police Search if Arrested for Purposes of Taking you into Custody

Where a police officer has arrested you for purposes of taking you into lawful custody, a police officer is allowed to search you at or after the arrest, but only if the officer forms a suspicion, provided it is a suspicion on reasonable grounds according to law that it’s prudent to search you in order to find out if you’re carrying anything:

Dangerous, or
That could be used to help you or anyone else escape from lawful custody.

Anything found by a police officer under this law to search you can be seized and detained by police if it is something dangerous, or used to help you escape, or something in connection to the alleged offence, or evidence in connection to the alleged offence, or something used or intended to be used in relation to the alleged offence. Here the officer does not have to establish a reasonable suspicion basis to seize these things, according to section 27(3) of LEPRA.

Police Search if You’re in Custody at Police Station or Other Place of Detention

Generally, a police officer can legally search you if you’re in lawful custody after having been arrested.

The officer is also then permitted to seize and detain anything found in your possession as a result. However, the search can only be conducted at a police station, other place of detention or immediately prior to or during your transportation to or from any such place, according to section 28A of LEPRA.

Can Police Search You if You Consent?

A police officer may search you if you have consented to it, according to section 34A(1) of LEPRA.

Before the search is conducted by consent, the officer is first required to:

Disclose to you evidence that he/she is a police officer unless the officer is in police uniform, and
Disclose to you his/her name and place of duty, and
Disclose to you the purpose of the search

The reason of the officer’s request for consent to search you must then also be the same reason or purpose of the actual search.

It is also important to note that, if you have consented to being searched by the police officer, this does not allow the officer to strip search you unless you have specifically consented to being strip searched, according to section 29(2)(b) of LEPRA.

General Search by Police Vs Strip Search by Police

The two main types of search a police officer may carry out on a person is either a ‘general search’ or a ‘strip search’.

A ‘general search’ involves a police officer being allowed to do the following:

The quick running of hands over the person’s outer clothing,
Require the person to remove any coat or jacket or other similar article of clothing, gloves, shoes, socks or hat. For this type of search, clothes cannot be removed,
Examination of anything in the person’s possession,
Pass an electronic metal detection device over the person’s outer clothing or over anything the person has removed from him/herself.

A ‘strip search’ allows a police officer to do the following:

Requiring the person to remove all of his/her clothes

Limitations and Rules on Strip Searches

A personal search such as a strip search is considered more invasive than a general search for obvious reasons.

The law imposes rules and limitations on the police conducting a strip search on you. These include the following, according to section 33 of LEPRA:

A police officer is NOT ALLOWED to:

Search any of your body cavities
Examine your body by touching
Remove more clothes than is reasonably necessary for the purposes of the search according to the police officer’s belief on reasonable grounds
Visually inspect more than the police officer believes on reasonable grounds to be reasonably necessary for the purposes of the search

A police officer can strip search you if it is at a police station or other place of detention if the officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search, according to section 31(a) of LEPRA.

A police officer can strip search you if it is carried out in any place other than a police station or place of detention, if the officer suspects 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 it necessary, according to section 31(b) of LEPRA.

Where reasonably practicable in the circumstances:

A strip search must be conducted in a private area, and
Must not be conducted in the presence or view of a person whose presence isn’t necessary for the purposes of the search, and
Must not be conducted in the presence or view of a person of the opposite sex to you.

If it’s reasonably practicable in the circumstances, you may have a parent, guardian or personal representative present during the search if you wish. This includes a person of the opposite sex as you.

If you have no objection to it, the strip search can be conducted by a police officer in the presence of a medical practitioner of the opposite sex as you.

If you’re a child aged at least 10-years but less than the age of 18-years, or if you have an impaired intellectual functioning, a strip search can only be conducted if:

It’s in the presence of a parent or guardian,
If a parent or guardian is not acceptable to you, the strip search must be conducted in the presence of another person who’s not a police officer, and who’s capable of representing your interests, and whose presence is acceptable to you.
The above two rules DO NOT APPLY IF the police officer suspects on reasonable grounds that delaying the strip search is likely to result in the evidence being concealed or destroyed, or an immediate search is necessary to protect the safety of a person. If this is the case, then the officer must make a record of the reasons for not conducting the search in the presence of a parent or guardian, or other capable person.

Rules and Limitations on Any Type of Police Search

The following are the rules and limitations that the police must also comply with across any type of search, whether strip search or general search, according to section 32 of LEPRA:

Before conducting the search, the police officer must tell you whether you’ll be required to remove clothing, and why it’s necessary to remove the clothing,
The officer must request for your co-operation,
The officer must search you in a way that gives you reasonable privacy and conduct the search as quickly as reasonably practicable,
The officer when searching you must do so in the least invasive way as is practicable in the circumstances,
The officer is not allowed to search your genital area or breasts unless the officer suspects on reasonable grounds that it’s necessary to do so for the purposes of the search,
The officer conducting the search must be of the same sex as you. If the officer of the same sex as you cannot be immediately available, the officer can delegate the power to search you to another person who is of the same sex as you and of a class of persons allowed to do the search. If this occurs, then that person is to conduct the search under the officer’s directions and in accordance with the law outlined in this article.
A police officer is not allowed to search you while also questioning you about their investigation. If questioning has not been completed, then it must be suspended while the search is conducted on you. However, the officer is allowed to question you regarding issues of personal safety relating to the search.
After you are searched, police must allow you to dress as soon as the search finishes.
If your clothing is seized from the search, the police officer must ensure you’re left with or given reasonably appropriate clothing.

What Amounts to a Reasonable Suspicion According to the Law?

A reasonable suspicion involves less than a reasonable belief but more than a possibility, according to the famous case of R v Rondo [2001] NSWCCA 540.

The first step is to find out what the information in the police officers’ mind was at the time of deciding to conduct the search.

After ascertaining this information, the second and final step is then for the court to consider whether that information amounts to reasonable grounds for the suspicion which the officer formed? If ‘yes’, then the search will be considered lawful. if ‘no’ then the search will be unlawful which can result in the evidence obtained from the search as inadmissible. The result of such evidence being inadmissible often results in the charges being dismissed.

The information or basis of the police officer’s suspicion can be hearsay or not so credible information, but must have what the law refers to as a some ‘probative value’, namely, extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue. This has also been expressed in Rondo’s case.

This means, that the reasonable belief or suspicion may be based on information which has been given anonymously or on information which turns out to be wrong. In fact, in figuring out as the court will whether the information considered by the police officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it.

Your Rights with Police NSW

If you have been arrested in respect to an alleged offence, you have the right to refuse answering police questions in relation to the investigation, other than to provide your identification details of name and address. You also have a right to communicate or contact a lawyer for advice, and a right to communicate or contact a friend, relative or guardian to disclose to them your whereabouts and to ask them to attend where you are as support., according to section 123 of LEPRA.

If you are not under arrest, then you have no obligation to attend the police station for questioning.

Police must return anything seized from you or your premises provided you had lawful possession of it before it was taken by police provided it is no longer required for evidence and it’s lawful for you to have it, according to section 218 of LEPRA. This can also apply to mobile phones seized by police. If police fail to return the item back, you may apply to the court for an order for its return under section 219 of LEPRA.

Police are not allowed to use more force than is reasonably necessary against you when exercising a police power i.e. search or arrest, according to section 230 of LEPRA.

If a police officer is exercising a police power to arrest or search you, the police officer must provide you with evidence that he/she is a police officer unless he/she is in police uniform; his/her name; place of duty; and reason for arresting or searching you. This must be provided to you as soon as is reasonably practicable, according to section 202 of LEPRA.

If requested by a police officer, you must disclose to police your identity by showing your ID if the police officer reasonably suspects that you may be able to help in an investigation of an alleged indictable offence (i.e. an offence carrying a maximum penalty of at least 2-years imprisonment). A police officer can only do this if the officer forms this suspicion because you were at or near the place where the alleged offence occurred (this includes being there before, during or soon after it occurred), according to section 11 of LEPRA. If you fail or refuse to disclose your identity without a reasonable excuse, you will face a penalty of up to $220 fine. The same maximum penalty applies if you provide police with false or misleading information about your identity.

If requested, you must disclose your identity to police if a police officer reasonably suspects that a vehicle you were driving, you own or are a passenger in, either is, was or may have been used in connection with an offence that carries up to at least 2-years imprisonment. Failure or refusal to comply without reasonable excuse carries up to $5,500 fine or, 12-months imprisonment, or both according to section 15 & 16 of LEPRA. providing police with false or misleading information about the requested identity carries the same maximum penalties.

Police are allowed to stop and conduct an RBT on you as the driver of a motor vehicle on a road. If this occurs, you are required to comply with the RBT breath test unless due to medical reasons you are unable to provide a sample. There is a maximum fine of $1,100 if you fail to stop when signalled to stop by police. The same maximum fine applies if you fail or refuse to give a breath test at the road side. However, failing to provide a breath test at the road side will allow police to arrest and take you to the police station to require you to provide a breath analysis sample, failing of which attracts up to 18-months imprisonment or $3,300 fine, or both in addition to an automatic 3-years disqualification of your driver licence or a minimum 12-months if the interlock program doesn’t apply. Assuming it applies, which it does for the usual cases, then it attracts a compulsory disqualification period of 6-9 months, with a minimum 2-years interlock period where you can drive with the interlock device installed.

If police are requiring you to stop for RBT purposes or requesting a breath test from you for same, a police officer is allowed to require you to produce your driver licence, state your name and home address. A digital driver licence is permitted to be shown in those circumstances. Failure to produce your licence attracts up to a $2,200 fine.

You can refuse to provide police with a breath test for RBT purposes if:

You are at your home
It has been over two hours since you last drove
It would be dangerous to your health due to injuries sustained
A doctor provides a view that it would be dangerous to your health to take a breath or blood sample
You have been admitted into hospital for medical treatment unless the doctor doesn’t object to it

If you’re on public transport, police or transit officers are allowed to require you to produce your travel ticket i.e. opal or concession card. Failure to comply attracts up to a $550 fine, according to rule 77E of the Passenger Transport (General) Regulation 2017 (NSW).

If a police officer or other authorised officer reasonably suspects you have or are committing a public transport offence under the Passenger Transport Act 2014 (NSW) (i.e. not having a valid ticket), the officer can require you to state your full name and address. This also applies if the officer has a reasonable suspicion of you committing or having committed a Graffiti offence on railway premises, according to section 162 of the Passenger Transport Act 2014 (NSW). Failure to comply without a reasonable excuse attracts up to a $550 fine. However, the officer must first warn you that a failure to comply is an offence and secondly must identify him/herself as an authorised officer or police officer. The officer is also then allowed to ask for proof of your name and address.

If you’re the driver of a motor vehicle who’s involved in a crash, you are required to provide to police either upon a police officer’s request (or if anyone’s killed, injured, you’ve been unable to or failed to give the required particulars to the relevant people, or a vehicle ends up being towed away) the following required particulars as soon as possible but within 24 hours after the crash, except in exceptional circumstances (according to rule 287 of the Road Rules 2014 (NSW)):

Your name and address,
Name and address of the owner of the vehicle,
Vehicle’s registration number,
Other necessary information to identify the vehicle,
Explanation of the circumstances of the crash

If as a driver of a motor vehicle you are involved in a crash, you’re required to provide required particulars of your name, address, name and address of the owner of the vehicle, vehicle registration number and any other information necessary to identify the vehicle, in addition to an explanation of the circumstances of the crash. This is required to be provided as soon as possible, or in exceptional circumstances within 24 hours after the crash. The information is required to be provided to any other driver involved in the crash and any person injured from the crash.

How long can police detain you NSW?

If after you have been legally detailed by police, following an arrest, police can detain you for the investigation period which commences when you are arrested and ends at a reasonable time having regard to all circumstances, but must not be more than 6-hours unless it ends up getting extended by a detention warrant, according to section 115 of LEPRA.

Remember, a police officer can detain you for purposes of investigating whether you committed an offence for which you are arrested.

Click here for an outline on the law on when can police arrest you in NSW.

Can police search your car?

If you don’t consent to a search, police can search your car without a warrant if the police officer forms a reasonable suspicion that the car has drugs, something in it unlawfully obtained, or a reasonable suspicion that the car is connected with an offence, it has anything inside it connected with an offence, it has a dangerous article inside it connected with an offence in circumstances the car is in a public place or school giving rise to a serious risk of public safety, or the car is in a public place or school that gives rise to a serious risk of the same where searching the car may reduce that risk. This is outline din section 36 of LEPRA.

Police can also search your car without a warrant if you consent to it, or where police have a valid search warrant to search your car.

Can police take your phone Australia?

Police are generally not allowed to take your phone from you in Australia unless you have been lawfully searched by the police first. There is no statutory law in NSW that permits police to take your phone without having first lawfully searched you. Otherwise, police can take your phone after a lawful search is conducted on you provided the safeguard requirements are complied with according to section 21, 27, and 28A of LEPRA.

Can Police search your phone Australia?

Can police go through your phone? Police cannot just search your phone as they please. The search must firstly be done legally within compliance of safeguards to avoid of peoples civil liberties and rights. This means that arguably police can search your phone if a legal search is conducted upon you by a police officer and the officer finds in your possession a phone, according to section 30 of LEPRA. a legal search must comply with the safeguards outlined earlier in this article.

Define frisk

A frisk search is a type of search conducted by police involving the running of hands over a person’s outer clothing, or passing a metal detector over a person’s outer clothing or over anything he/she has. These searches are also commonly called general search. The other type of search police may conduct is called a strip search which involves the removing of clothing. Whatever the search type, when police are conducting a search on a person, it must be done within the confines of the legal safeguards or rules under the law. Breaching these safeguards can have significant consequences against the police.

Search Warrant NSW

A police officer can apply to an ‘eligible issuing officer’ for a search warrant to search any premises according to section 47 of LEPRA. This can be applied for if the police officer forms a reasonable suspicion that there is or within 72 hours will be a thing connected with a searchable offence in or on the premises. If granted, the search warrant allows police to enter and search the premises for things connected with a searchable offence in relation to the warrant. The occupier of the premises should also be given notice on entry or as soon as practicable afterwards, unless it is a covert search warrant. In addition, police may also search any person found on the premises if the police officer reasonably suspects that the person has a thing mentioned in the warrant, according to section 50 of LEPRA.

How Much Force Are Police Allowed to Use?

A police officer trying to legally search a person aged at least 10-years is allowed to use reasonably necessary force, according to section 230 of LEPRA.

Taking Identification Particulars of Children

Police are permitted to take necessary particulars to identify a person who’s lawfully in custody for any offence. If the person is aged over 14-years, a police officer is also permitted to take that person’s photo, finger-print and palm-print (according to section 133 of LEPRA).

If the child is aged under 14-years who’s lawfully in custody for an offence, a police officer cannot take the child’s photo, finger-print or palm-print UNLESS through a court order under section 136 of LEPRA.

The Definition of a ‘Child’?

A child is defined as a person under the age of 18-years.

The law presumes conclusively that a child under the age of 10-years cannot be guilty of an offence. But if a child is aged between 10 and 14-years, that child will be presumed to be incapable of bearing criminal responsibility unless evidence can be shown otherwise.

Generally, the Children’s Court deals with charges against children if the accused child was under the age of 18-years at the date of the alleged offence, but under the age of 21-years when charged.

The Legislation that covers the law on criminal proceedings against children is the children (Criminal Proceedings) Act 1987 (NSW).

Have a question on police powers in NSW? Call our friendly team on our 24 hour legal hotline to arrange a consultation with an experienced criminal lawyer in Sydney today.

Published on 24/03/2021