2.8 The power to stop and conduct searches before and after arrest73
At common law there is no power to conduct a medical examination without the consent of the person, either before or after arrest.74 A police officer could lawfully search the body, clothing and property in the immediate possession of a person arrested, but only if such a search was reasonably believed to be necessary: (a) for the purpose of discovering a concealed weapon which might be used by the person to injure himself or others or to assist escape; or (b) to secure or preserve evidence with respect to the offence for which the person is in custody.75 Thus, the police have a common law power to search a person on arrest, based on the principle of safety in some cases and in others on the interests of justice, in order that evidence of the crime might not be destroyed or lost.
This common law position has been modified by statute. Search powers are provided before a person has been charged with an offence. For example, section 8 of the Search Warrants Act 1985 permits a police officer who is executing a search warrant to search a person found on the premises whom the officer 'reasonably suspects of having a thing mentioned in the warrant'. Further, various provisions also permit police to search persons without a warrant. These include:
- Section 357 of the Crimes Act 1900 which provides police with a power to detain or search any person in possession in a public place of a 'dangerous article' which is being or has been used in the commission of an offence; police can also seize and detain any such article. Further provision is made for a power to seize dangerous articles found on premises;
- Section 357E of the Crimes Act 1900 which provides a police officer with the power to stop and search 'any person whom he or she reasonably suspects of having or conveying any thing stolen or otherwise unlawfully obtained or any thing used or intended to be used in the commission of an indictable offence'. A power to search vehicles is also provided for under this section. However, a broader range of powers exist for this purpose under the Police Powers (Vehicles) Act 1998;
- Section 6 of the Intoxicated Persons Act 1979 which provides that a police officer who has lawfully detained an intoxicated person may search that person and take possession of any personal belongings;
- Section 29 of the Children (Protection and Parental Responsibility) Act 1997 which empowers a police officer to frisk search a person (under the age of 16 and in an area prescribed by the Act) he believes on reasonable grounds may be carrying a concealed weapon and to take possession of any weapon found in the person's possession, if it is believed that retaining the weapon may be dangerous. A frisk search is defined to mean: a search of a person conducted by quickly running the hands over the person's outer garments; and an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person;
- Section 28A of the Summary Offences Act 1988 (the 'knife laws' as introduced by the Crimes Legislation Amendment (Police and Public Safety) Act 1998 ) which permits a police officer, with reasonable grounds to suspect that a person has unlawful custody of a knife or other dangerous implement, to search the person and to examine any bag or other personal effect the person has with them; and
- Section 37 (4) ('Powers of search and detention') of the Drug Misuse and Trafficking Act 1985 which provides that a member of the police force may stop, search and detain 'any person in whose possession or under whose control the member reasonably suspects there is, in contravention of this Act, any prohibited plant or prohibited drug'.
Among the most significant of these powers are sections 357E of the Crimes Act and section 37 (4) of the Drugs Misuse and Trafficking Act which give police a wide discretion to search without a warrant or before arrest. In both cases a search can only be conducted where a police officer 'reasonably suspects' that there are relevant grounds for it to be conducted. These search powers were outlined and analysed in a recent report by the NSW Ombudsman in which the powers under the above provisions were contrasted with those operating under section 28A of the Summary Offences Act (the knife laws). The report commented that, for police to carry out a search under section 28A:
...they must provide evidence that they are police officers, give their name and station, give the reasons for the search and warn that failure to comply may be an offence. Also, there are practical limits on the intrusiveness of the search permitted.76 There are no such requirements or limits formally set out in the Crimes Act or the Drugs Misuse and Trafficking Act.77
Two issues arise in this context. First, what constitutes 'reasonable grounds' for suspecting a person? Secondly, what, if any, limits can be set on the way searches may be conducted under the broad discretionary powers?
What are reasonable grounds for suspicion to stop and search?
As to the issue of 'reasonable grounds for suspicion' this is said to involve both an objective and a subjective element. The case law suggests that 'reasonable grounds can only be determined by objectively judging the reasonableness of the facts subjectively identified and assessed by the police officer prior to conducting a search in light of all the circumstances in play at the time'.78 Reasonable grounds involves less than a reasonable belief but more than a reasonable possibility.79 According to the Code of Practice for CRIME, reasonable suspicion means 'More than mere imagination or conjecture'.80 The Code advises officers, 'In determining whether you have reasonable suspicion consider all the circumstances of each situation', adding 'Your decision must be objective...'.81 The issue was also discussed in the April 1999 issue of Policing Issues and Practice Journal which commented:
It is extremely difficult to explain what is meant by the term 'reasonable suspicion' beyond that the suspicion must be reasonable in all the circumstances of the particular case. Case law provides some guidance but courts tend to make their assessment on a number of factors rather than any single issue. Suffice to say that you should be prepared to explain why and how you developed your suspicion that the person should be subjected to a search and what you were searching for...Whether your suspicion is reasonable or not is a matter for the court to decide.82
The article went on to say that both the NSW Ombudsman and the Police Service Code of Practice for CRIME have 'expressed the view that it is unreasonable for police officers to stop, detain and search pedestrians under s357E(a) of the Crimes Act (NSW) merely because of their presence in the vicinity of an offence'.83 Officers were also advised in the article not to search 'people just as a matter of routine', and not to use special legislative search powers 'opportunistically' - 'don't use your power to search for knives to carry out a search when your suspicion relates to drugs'.84
What kind of searches may be conducted before arrest?
It has been noted that under section 28A of the Summary Offences Act 1988 (the knife laws) certain restrictions are placed on the power of police to search for knives and other dangerous implements. For instance, police cannot ask a person 'to remove any item of clothing' other than a hat, gloves, coat or jacket. In conducting a search, police may either use a metal detector or search 'by quickly running the hands over the person's outer garments'. If something is found, police may require the person to produce the object, but must warn 'that failure to produce any thing detected or seen by the police officer during the search may be an offence'.
Comparable safeguards and restrictions are not found under the general stop and search provisions. This raises the question as to what limits, if any, are set on the power to search suspects before arrest in these circumstances, or indeed where a person may 'consent' to be searched without any formal authority being invoked?85 The Code of Practice for CRIME advises that usually only frisk searches should be conducted: 'Generally, conduct a frisk search only. A strip search cannot be conducted unless clearly justified'.86 Likewise, the now superseded Commissioner's Instructions stated:
Personal searches of the body in the absence of an arrest are confined to 'frisk' type searches unless the seriousness and urgency of the circumstances require and justify a more intrusive search of the surface of the body.87
The fact remains, however, that sections 357E of the Crimes Act and section 37 (4) of the Drugs Misuse and Trafficking Act are not made subject to explicit statutory safeguards or restrictions.
The power to search after arrest:88
Powers of search and seizure also apply under section 353A (1) of the Crimes Act once a person is in 'lawful custody' and charged with an offence. In these circumstances a police officer 'may search the person and take from the person anything found upon that search'.89 The now superseded Commissioner's Instructions stated expressly that a strip-search could be conducted at this stage, but warned that this should not extend to the searching of body cavities.90 As to when strip searches of the 'surface of the body' may be conducted, Annexure A to the Code of Practice for CRIME explains that there will be 'rare' occasions when such searches are justified, as for example when 'critical evidence relating to the offence being investigated might be lost'. Remember, the Code advises:
Do not strip-search a prisoner unless the seriousness and urgency of the circumstances require and justify a more intrusive search of the surface of the body.
Do not strip-search a prisoner, unless the prisoner knows in substance the reason why it is being imposed.
Do not search body cavities.91
As for searching children, the Code warns that a search can only be conducted in the presence of a support person (unless the child has asked otherwise and has asked in the presence of a support person and that person has agreed).92
