Search and Seizure
Whether or not a search is lawful is important. If a police search is unlawful, the evidence found in that search may be held inadmissible. If held inadmissible, the evidence cannot be used to convict.
In New South Wales, the law in relation to police search of a person without a warrant is provided in section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). In respect of a vehicle, see section 36 of same Act.
A police search of a person or a vehicle is only lawful if the searching police officer has in their mind, immediately prior to or at that time during which the search is performed, a reasonable suspicion that the person or vehicle has:
- Something illegal (e.g. drugs or weapons) on them or it.
- Evidence of an illegal act that is being committed at the time of search, or, that has recently been committed.
If a person provides consent to the police, the requirement that a police offer must hold such a reasonable suspicion is effectively waived. In other words, a police search which is unlawful will be made lawful if a person consents to the search.
The significance of providing consent to a police search is shown by contrasting the following cases.
In a case before the Queensland Supreme Court, the appellant was convicted of drug possession. The drugs were found by police after their search of the appellant’s person. The search occurred when police spotted and approached the appellant outside a nightclub, “known for its drug activities”. The searching police officers said they formed a reasonable suspicion from, amongst other things (but in particular), the offender’s behaviour, specifically:
- The offender was talking quickly.
- The offender seemed nervous.
- The offender was sweating a lot.
The Queensland Supreme Court held that such behaviour could not, without more, establish a reasonable suspicion by which search of the appellant’s person could be considered lawful. However, the offender had stated to the police, in words to the effect of, ‘search me’. In so doing, the offender consented to the search and the search was thus lawful. As a result, the drugs the police found on the appellant’s person during the search were admissible and could be used to convict him.
In a case before the courts of New Zealand, the appellant was a relative of an individual well known to police for dealing in firearms. The appellant was pulled over by police in said relative’s car. The police told the appellant to open the boot of the car, wanting to search it for firearms. The appellant said no. The police, nonetheless, demanded that the appellant open the boot. The appellant, whilst expressing objection in doing so, reluctantly did so.
The court held that the search of the vehicle was unlawful. The appellant had clearly conveyed to the police, by his words and conduct, that he did not consent to search of the vehicle. In turn, the mere fact that his relative was known to deal in firearms could not cause a reasonable suspicion that the appellant had firearms in the vehicle at that point in time at which the vehicle was searched. In the result, the firearm found during the police search was held inadmissible and could not be used to convict the appellant.