Last December, NSW Greens MLC David Shoebridge released figures showing that the use of strip searches by NSW police rose by 47 percent over the four-year period ending in June 2018.
A campaign against the overuse of this invasive procedure was initiated as a result, emphasising that strip searches are only to be used as a last resort, not as routine police practice.
The laws applying to strip searches are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), commonly known as the LEPRA. It stipulates that in the field, strip searches can only be conducted when the “seriousness and urgency” of the circumstances make the procedure necessary.
But, even though the rules for strip searches are contained in the LEPRA, many are unsure about what constitutes reasonable grounds of suspicion, whether an individual can refuse a search, and what police are permitted to do if a person does refuse.
“It is not illegal for someone to refuse an unlawful strip search,” explains Redfern Legal Centre head of police accountability practice Samantha Lee. “However, the cards are stacked against the person who does not comply with a police request of this nature.”
“On its own, the indication by a sniffer dog is not enough to establish reasonable grounds to conduct a strip search," she told Sydney Criminal Lawyers, “and a person would be within their rights to refuse a strip search on this basis.”
However, Ms Lee warns that if a person refuses a strip search, officers “may use force against them.” And this “could result in the situation escalating and the person resisting being charged with hindering police.”
However, it is important to note that if it transpires that the search was unlawful, the charge may be thrown out in court.
Sydney Criminal Lawyers principal Ugur Nedim observes that while the LEPRA states that police can use drug dogs to assist in “general drug detection”, there’s nothing in the Act that says officers can carry out a search on the basis of a sniffer dog indication, nor is there anything that states that it can constitute reasonable suspicion.
As part of the anti-drug dog campaign Sniff Off, Mr Shoebridge has been collecting data relating to searches carried out after a drug dog indication. He has found that since 2009, searches prompted by a dog turned up no illicit substances two-thirds to three-quarters of the time.
Mr Nedim points to the finding of former NSW Supreme Court Justice Rex Smart in the leading case of Rondo, when he stated that in order to “to form a reasonable suspicion, there must be ‘more than a possibility”’ that a person is in possession of illegal drugs, and such a low percentage of findings following a positive indication cannot meet that test.
It is important, however, to never provide consent when being searched by a police officer. If you do agree to a strip search, then anything that follows is legal, regardless of whether officers acted in accordance with search protocols.
Even if an individual understands that the basis for the police searching them is unwarranted, it is still best to follow an officer’s directions anyway. As Ms Lee states, the odds are against a person if they don’t reply.
“The recently released and updated NSW Police Personal Search Manual directs police officers to use force if a person fails to comply with a strip search,” Ms Lee says. This means that as an officer is likely to believe what they’re doing is lawful, they may use force if resisted.
However, Ms Lee doubts that this is actually legal. “As far as I’m concerned, any use of force by police when conducting a strip search is unlawful because the law clearly states a strip search is a visual inspection only,” she explains.
Read the full article here (Sydney Criminal Lawyers, 18 October 2019)
