The following is a summary of police powers under the Law Enforcement (Power and Responsibilities) Act 2002 which governs police powers in executing searches of persons, their motor vehicles and their homes.
The term “reasonable suspicion” is noted throughout the Law Enforcement (Power and Responsibilities) Act. The term “reasonable suspicion” means less than a belief, but more than a mere possibility. There must be some factual basis for police to hold the suspicion.
What powers do the police have? What can the police do?
Power of police to request disclosure of driver or passengers of motor vehicles
If the police suspect, on reasonable grounds, a vehicle is, was or may have been used in connection with an offence, they can request that the driver of the vehicle disclose their identity or the identity of any of their passengers at or about the time that the vehicle may have been used to commit the offence.
Police may also request that any passenger in the vehicle disclose their identity or the identity of the driver or any other passenger.
Police also have the power to request that an owner of the vehicle who is not a driver or passenger of the vehicle at the time disclose the identity of the driver and any passengers who may have been in the vehicle at the time that the vehicle may have been used in connection with any offence.
It is an offence to fail to disclose the identity in any of the above situations and the offence carries a maximum penalty of $5,500 fine or 12 months imprisonment or both.
It is also an offence to provide false or misleading information about the identity which attracts the same penalty as above.
Power of police to search and seize without a warrant
Without first obtaining a warrant, police have the power to stop, search and detain a person and anything in the possession or control of that person if the police suspect, on reasonable grounds, that a person:
- Has in their control anything stolen or illegally obtained;
- Has in their possession anything used or intended to be used in connection with an offence;
- Has in their possession or in their control a dangerous item that is or was used in connection with an offence; or
- Has in their possession a prohibited plant or drug.
If police execute their powers under this section, the police may seize and detain anything that they suspect, on reasonable grounds, is:
- Stolen or otherwise unlawfully obtained;
- May provide evidence of the commission of an offence;
- A dangerous item; or
- A prohibited drug.
When undertaking the search, police also have the power to request a person to open their mouth or shake or otherwise move their hair if they suspect, on reasonable grounds, that there is a concealed item.
This section does not authorise a police officer to forcibly open a person’s mouth, however, if the person fails to reasonably comply with a request, they face a maximum penalty of $550.
There are additional powers of police to search a person who is under arrest or whilst in custody.
A police officer who arrests a person may search the person at or after the time of the arrest if the officer suspects, on reasonable grounds, to ascertain if a person is carrying anything that:
- Would present a danger to a person;
- Could be used to escape from custody;
- Is a thing connected to an offence;
- Is an item which would provide evidence of the commission of an offence; or
- Is an item used or intended to be used in connection with an offence.
Police also have additional powers for the search of knives. A police officer may request any person who is in a public place or at a school to submit to a frisk search if the police officer suspects, on reasonable grounds, that a person has a dangerous implement.
There are two main types of searches that police carry out:
A frisk search involves a search of a person by police quickly running their hands over the person’s outer clothing or by passing an electronic metal detection device over or in close proximity to the person’s outer clothing. When conducting a frisk search, police may request the removal of a coat or jacket and the frisk search will thereafter occur over the person’s outer clothes once the jacket has been removed.
A strip search involves a search of a person requiring the person to remove all of his or her clothes and an examination of the person’s body (but not of the person’s body cavities) and of their clothes. A police officer or other authorised person may conduct a strip search of a person if the police officer suspects, on reasonable grounds, that there is a necessity to conduct a strip search of the person for the purposes of the search or the seriousness or urgency of the circumstances require a strip search to be carried out.
If undertaking a strip search, a police officer must comply with the following:
The strip search must be conducted in a private area;
The strip search must not be conducted in the presence or view of a person of the opposite sex;
The strip search must not be conducted in the presence or view of any other person not necessary to be present for the purpose of the search.
A strip search does not involve the search of any person’s body cavities or examination of the body by touch.
It also does not involve the removal of any more clothes that is necessary to be removed for the purpose of carrying out the search.
A strip search cannot be conducted on any person under the age of 10 years.
See Also: When can a police officer search you?
Power of police to search vehicles
A police officer may, without a warrant, stop, search and detain a vehicle if the police officer suspects, on reasonable grounds, that one of the following circumstances exists:
- The vehicle contains, or a person within the vehicle has in their possession, anything stolen or otherwise unlawfully obtained;
- The vehicle was or has been used in connection with an offence;
- The vehicle contains anything intended to be used in connection with an offence;
- The vehicle is in a public place or school and contains a dangerous item;
- The vehicle contains any prohibited drug; or
- Circumstances exist which would likely give rise to a serious risk of public safety.
A police officer, when undertaking a stop and search of a vehicle, may seize and detain any item that the police officer suspects, on reasonable grounds is:
- Stolen or otherwise illegally obtained;
- Any item the police officer suspects, on reasonable grounds, may provide evidence of the commission of an offence;
- A dangerous item;
- A prohibited drug or plant.
Police powers when executing a search warrant
A police officer may apply for the issue of a search for any premises the police officer believes, on reasonable grounds, is, or, within 72 hours, will be a connected with an offence in relation to the warrant.
The issue of search warrant requires a formal application by police officers to an authorised justice.
If a search warrant is granted, the search warrant authorises the police or other executing officers to enter the premises provided for within the search warrant and search the premises for things connected with a particular offence noted on the warrant.
A search warrant can also be a covert search warrant which enables the search warrant to be conducted without the knowledge of the occupier of the premises.
When executing a search warrant, the person executing the warrant may seize or detain any item mentioned in connection with the warrant and may, in addition, seize or detain anything which is found in the course of executing the warrant which the person has reasonable grounds to believe is connected with another offence.
The power extends to the individual executing the search to remove anything from the premises where it is found, to guard any item on or in the premises or, if the covert search warrant is applicable, to place any item in substitution of the seized item.
A covert search warrant also allows the re-entering of the premises to replace any item seized.
When executing the search warrant, the person executing the warrant may search any person found in or on the premises which the person executing the warrant reasonably suspects of having an item mentioned under the warrant.
When executing a search warrant, the issuing officer is to prepare and give to the occupier of the premises an occupier’s notice. The occupier’s notice must state in writing the name of the person who applied for the warrant, date and time when the warrant was issued, the address or other description of the premises subject to the warrant and must contain a summary of the nature of the warrant and the powers conferred by the warrant.
Before entering the property, a person executing the warrant must announce that the person is authorised by the warrant to enter the premises and give any person in the premises an opportunity to allow entry to the premises.
Failure to provide entry to the property will result in the warrant authorising the police to use any such force as may be reasonably necessary for the purposes of entering the premises, including disabling any alarm, camera or surveillance device and to pacify any guard dog at the premises.
Reasonable force also allows for the police to break any receptacle in or on the premises for the purposes of any search.
A warrant other than a covert search warrant must not be executed at night unless authorised.
It is an offence to obstruct, hinder the execution of a warrant. It attracts a fine of up to $1,100, two years imprisonment or both.
The above is only a summary of the law applicable under the the Law Enforcement (Power and Responsibilities) Act.
It is important to note that if you voluntarily consent to a request made by police such consent may provide basis for the police to undertake a search or to ask questions they were otherwise not legally able to undertake.
If you or your home has been search in accordance with a warrant or the powers under the Law Enforcement (Power and Responsibilities) Act, you should immediately obtain legal advice.
- Criminal Law
- AVOs Apprehended Violence Orders
- Affray and Public Violence
- Break and Enter
- Centrelink Fraud
- Computer Offences and Cybercrime
- Corporate Crime
- Drug Driving Lawyers
- Drink Driving Lawyers
- Drug Offences
- Extortion and Blackmail
- Firearm Offences
- Larceny and Stealing
- Hinder an Investigation
- Malicious Damage to Property
- Murder and Manslaughter
- Penalty Notices
- Perjury and False Accusations
- Stalking and Intimidation
- Bankruptcy Crime
- Environmental Crime
- Fraud & Cyber Fraud
- Identity Crime
- Insider Trading
- Misappropriation of Assets and Funds
- Money Laundering
- Tax Fraud
- Sex Crimes and Sexual Offences
- 04/07/2017 by Gavin HanrahanWhat is the Unfair Dismissal High Income Threshold?
- 02/05/2017 by Gavin HanrahanCommercial Leases in NSW: Common Questions & Answers
- 24/06/2014 by Gavin Hanrahan6 Ways To Improve Employee Attendance
- 22/04/2015 by Gavin HanrahanWhat is a Heads of Agreement and are they legally binding?
- 05/07/2017 by Gavin HanrahanUnfair Dismissal Maximum Compensation Explained