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 Unlawfully searched at Groovin the Moo?

POWERS have been provided to the NSW Police to allow them to undertake their duties. Examples of powers that the Police have which civilians do not that are commonly seen in our society include the power to prevent an intoxicated person from driving, the power to request a person to disclose his or her identity, and the power to search an individual. However, most powers conferred on the Police are not absolute. In other words, the NSW Police cannot exercise their powers wherever they want, when they want. Requirements normally have to be met.

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It is not uncommon for the NSW Police to search individuals suspected of having a prohibited drug in his or her possession. However, the Police cannot search people indiscriminately. Without a warrant, they cannot stop, search and detain a person unless the police officer suspects on reasonable grounds that the person has drugs in his or her possession. A person merely walking in public does not give rise to ‘reasonable grounds’ for that person to be searched. If the Police cannot prove to the court that they observed the person engaged in some sort of suspicious activity, they cannot be said to have had ‘reasonable grounds’ to conduct the search.

If the Police arrest someone for possession of drugs, and then the court considers that the Police did not have reasonable grounds for conducting the search in the first place, the court is likely to consider the search to have been conducted unlawfully. In this case, the court would ordinarily ignore the evidence produced through the search, being the finding of drugs. If the Police cannot then use the evidence which shows the person had drugs on him or her, they will have no case.

An example:

A solicitor of Levitt Robinson represented an individual who was found by police to have drugs in a night club. A sniffer-dog was brought into the club, walked through the crowd, and then walked past the accused. The police searched the accused and found prohibited drugs. In court, the Magistrate was satisfied that the dog had made no indications at the time that it did smell the drugs. It simply did not react. However, the police continued to search the individual on their own accord. The Magistrate held that without a reaction from the dog, the police had no reasonable suspicion to conduct the search. Therefore, the search was considered unlawful, and the evidence obtained, being the finding of drugs in his possession, was excluded and not allowed to be relied upon the Court. Therefore, the police had no evidence to rely upon, and the charges were dropped.

This article is not legal advice, and should not be relied upon as legal advice.

WHAT SHOULD YOU DO IF YOU ARE SEARCHED BY THE POLICE?

For emergency advice, call Levitt Robinson Solicitors on its 24 Hours line: 0426 824 836
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If you would like a consultation either email us at reception@levittrobinson.com or call us on (02) 9286 3133