When can Police search a person and what can they seize and detain?

Posted on Aug 15, 2018 by Matthew Wicks   |   Categories: Criminal & Traffic Law

The actions of Police in NSW are predominantly governed by the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”). One such action governed by LEPRA is when Police are able to search a person if they do not have a warrant to do so.

Section 21 of LEPRA sets out that a Police officer may, without a warrant, stop, search and detain a person and anything in the possession or control of the person if the police officer suspects on reasonable grounds that the person has in his or her possession or under his or her control:

(a) anything stolen or otherwise unlawfully obtained;

(b) anything used or intended to be used in or in connection with the commission of a relevant offence;

(c) in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence; or

(d) in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.

The Courts have gone on to define what a reasonable suspicion is for the purposes of this section as requiring some factual basis for the suspicion, and what is important is the information in the mind of the Police Officer at the time of the stopping or of the arrest.

If a Police officer approaches you and notifies you that they wish to undertake a search, you are able to request evidence that the person is in fact a Police Officer along with their name, their place of duty and the reason for the search.

If you do not comply with the search you may be committing an offence pursuant to LEPRA.

If you are searched pursuant to section 21(1) of LEPRA, the police may seize and detain all or part of a thing that they suspect on reasonable grounds is stolen or otherwise unlawfully obtained or that may provide evidence of the commission of a relevant offence, any dangerous article or any prohibited drug in the person’s possession or control in contravention of the Drug Misuse and Trafficking Act 1985.