When can police conduct a strip search? This video discusses police strip search powers in NSW.
The use of police strip searches in NSW has almost doubled over the past four years. You are more likely than ever to be strip searched by police, in all sorts of places: at music festivals, in regional areas, in the back of police paddy wagons, and on the street. If you find yourself in this situation, it’s important to know your rights.
A strip search is when a police officer asks you to remove some or all of your clothes, and visually examines your body. They may also search your clothes and bags.
The law is clear that a strip search is supposed to be a last resort. Police have a general power to stop, search and detain you only if they suspect on reasonable grounds that you have something illegal in your possession, such as illegal drugs, a weapon, or something stolen (s 21).
A ‘reasonable suspicion’ must be more than a possibility, but less than a belief. There must be a factual basis for the suspicion – for example, if the police observe you giving someone a package in exchange for money. The formation of a reasonable suspicion is usually based on a number of factors.
Ordinarily, police may frisk you by patting down the outside of your body, or require that you remove your outer clothing or shoes (s 30). They can also ask you to open your mouth or shake your hair (s 21A).
Then, a police officer can only strip search you if they suspect, on reasonable grounds, that a strip search is necessary, and that the circumstances are necessarily serious and urgent (s 31). The power to strip search is deliberately framed with strong language: necessary, serious, and urgent.
Defining what makes a strip search necessary is tricky. Simply attending a music festival is not reasonable grounds for suspicion. Objecting to a search, or demanding a reason for the search, isn’t sufficient grounds either. You are allowed to assert your rights.
First, the police must suspect on reasonable grounds that you have something unlawful in your possession. But that alone isn’t enough to strip search you.
The second hurdle the police must overcome before strip searching you is that the circumstances must be serious and urgent enough to make a strip search necessary. Again, defining what is ‘serious and urgent’ about a certain situation is something that really depends on the facts. But it’s what the legislation says, and the police must have a legitimate answer if you ask them why the circumstances are serious and urgent enough to require a strip search.
If the police have strip searched you, it’s important to get legal advice to understand what options you have.
When conducting a strip search police must comply with the legislative requirements under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’). If they don’t, the search may be unlawful.
If you do end up needing to defend a charge resulting from a strip search, the court may determine whether the search was conducted lawfully or not. Evidence found as a result of an unlawful or improper search may be excluded, which could lead to the charges being dropped.
If you think you have been unlawfully searched, call Redfern Legal Centre for free and confidential advice on 9698 7277. You can learn more about strip-search laws in NSW by visiting www.safeandsound.org.au