Your rights [or lack thereof] in regards to sniffer dogs and searches in NSW

[Torsten]

http://www.iclc.org.au/factsheets/iclc_fs_police.html

Police powers and drug searches

If you have attended Mardi Gras, Sleaze Ball or a music festival in recent years, you have probably noticed a significant police presence, often accompanied by sniffer dogs looking for people carrying drugs. If you are stopped and searched by police, it is important to know your rights and what police can and can’t do. The following fact sheet outlines police powers regarding stopping you, searching you and using sniffer dogs.

1. Reasonable grounds for being searched Power to search

Police have a general power of search and seizure which is broadly defined with few safeguards. A police officer has the power to stop, search and detain anyone reasonably suspected of having drugs or anything dangerous or unlawful on their person. A warrant is not required and is almost never used in practice. The only basis required for a search is a reasonable suspicion held by the police officer.

What are “reasonable grounds to suspect”?

There must be a factual basis for the suspicion. Police guidelines direct police to consider things like the time and location, your behaviour and “antecedents” (whether you have a criminal record or other information known to police). Simply being present at an event such as the Mardi Gras party or a music festival is not a reasonable ground to suspect you are carrying drugs or something illegal.

If the police do not have these “reasonable grounds to suspect”, the search is illegal and any force used will be an assault by the police officer. This would need to be established in court but you would not succeed if the police officer did find drugs or other illegal items when they searched you. Another option to consider is a complaint against the police officer.

Using sniffer dogs to establish “reasonable grounds to suspect”

Police use sniffer dogs in order to form the basis of a legal police search. This part of the law doesn’t give police the power to detain so they cannot force a person to stay in an area while the dog sniffs that area. However, if a person does leave the area police can use that as a basis for “reasonable grounds to suspect”.

If a dog gives an indication of finding drugs, this gives the police reasonable grounds to suspect you have drugs, and they will be entitled to search you and detain you. The police must ensure that the sniffer dog is under control and that the dog does not unnecessarily touch you during the search.

Where can sniffer dogs be used?

The police have the power to search for drugs using sniffer dogs in or around an area where alcohol is sold; where patrons enter or exit a public event like a sporting event, concert, dance party or parade; and on public transport, in a station or at a bus stop.

2. Being searched: your rights and safeguards

The police powers law sets out how police can conduct a search. There are some safeguards in place which police must comply with if they do decide to search you, particularly regarding strip-searches. However some rules are guidelines which police only have to comply with so far as it is reasonably practicable to do so.

Initiating the search

When initiating a search a police officer must:

• provide evidence they are a police officer, such as their warrant card, if they are not in uniform;
• tell you their name and station;
• tell you reason for the search.

Conducting the search

The following applies to all searches. If the police are going to search you they have to:

• ask for your cooperation;
• tell you if you will have to take an item of your clothing off before the search; and
• tell you why you need to take clothes off for the search.

During the search:

• the police must conduct the least invasive kind of search practicable in the circumstances, i.e. no strip search unless it is actually necessary;
• the police must conduct the search in a way that provides you with reasonable privacy and as quickly as is reasonably practicable;
• unless it is reasonably necessary, no search of the genital area or breasts (for female or female identifying trans and intersex people) is permitted;
• you should be searched by an officer of the same sex;
• you cannot be questioned while being searched; and
• the police must allow you to dress as soon as the search is finished.

Strip searches

If the police require you to remove your clothes, other than just outer clothing, you are being strip-searched. There are further safeguards and restrictions on police actions for strip searches. The police cannot strip search as a matter of policy or use these powers as a matter of course. The police must believe on reasonable grounds that a strip search is necessary and that the seriousness and urgency of the circumstances require it.

A strip search is only a visual search of your body and during the search the police are not allowed to:

• ask you to remove any clothing that is not necessary;
• touch your body;
• search any body cavities; or
• search your genital area.

The police must comply with these rules. They are mandatory. However there can be disagreement over what clothes are necessary to remove.

There are further rules which are not mandatory and only need to be complied with as far as is reasonably practicable, including:

• only police necessary for the search are allowed to be present or able to see you;
• you must be allowed to dress as soon as the search is finished;
• the search must be conducted in a private place where no one of the opposite sex can see you; and
• only an officer of the same sex as you is allowed to conduct the search.

If a police officer believes that you may have drugs, anything dangerous or illegal in your mouth or hair they are allowed to ask you to open your mouth or move your hair. For any other search of a body cavity, the police need to have your consent or a court order.

Disclaimer: The information contained in this fact sheet is only intended as a guide to the law and should not be used as a substitute for legal advice. If you have any further questions we strongly suggest you seek legal advice.

Note: This information applies to people who live in, or are affected by, the law as it applies in the State of New South Wales, Australia.

The information contained in this factsheet is current as at 14th February 2011.

[Jox]

Thanks for the info Torsten,

I had one question, is there really anyway to avoid a sniffer dog?

For example, if you were entering an event with a group of mates & an officer with his dog asked you all to come over here or your getting of a plane & you & the rest of the passengers get asked to form a line & wait for the dog to walk by, do you have the right to ignore them & keep going on your way? From what I understand from your post you could keep going BUT then you have given them reasonable grounds to suspect & this gives them the right to stop you?

Sorry if this is a stupid question, but is seems there is really no way the avoid them.

Cheers

jox

[Anodyne]

From what I understand from your post you could keep going BUT then you have given them reasonable grounds to suspect & this gives them the right to stop you?

Yup, if you float you're a witch.

[whitewind]

I'm pretty sure a lot of these rules were flouted in a recent search of a friend of mine in a club. He has witnesses, but neglected to take the officers name (he didn't have any drugs on him, and he felt it was better wasting their time than searching someone who did).

It was interesting that the dog took notice of him - he had not done anything unusual apart from help care for a sick cat during the day and didn't have time to change before going out.

The officers questioned him during the search and were very unpleasant and aggressive, trying to scare him into admitting something that wasn't true.

There were no other grounds for the search. He was in a group of 20 odd people at a party celebrating someone's wedding or something, and were drinking heavily.