RLC in the Media: Never Consent to a Pat Down, Car Search or Strip Search

If you consent when an officer asks whether you agree to a warrantless search of your person or your vehicle, you’re also providing that the search is legal – regardless of whether the officer follows correct protocol or not.

Paul Gregoire and Ugur Nedim report for Sydney Criminal Lawyers

“Go for it. There is nothing in here,” was the response Troy Leonard gave to Constable Geoffrey Barnes, when he asked to search the man’s car on the Sturt Highway in April 2000. Barned has pulled Leonard over to breathalyse him and remarked that the road was notorious for drug transportation.

On searching the boot of the vehicle, Constable Barnes found several bags of cannabis and Leonard ended up in court on drug supply charges. The magistrate, however, found four reasons as to why the search was unlawful, which rendered the evidence inadmissible and Leonard was not convicted.

But, the Director of Public Prosecutions appealed the outcome to the NSW Supreme Court. It found that because Leonard has provided consent, it led the unlawful nature of the search to no longer be of relevance and the defendant was sent back to face another magistrate.

In relation to this, Redfern Legal Centre’s The Law Handbook advises that “if police want to search you, the appropriate thing to do is to say clearly that you do not want to be searched, and that you want that written down”, so police cannot claim later that you did consent to the search.

Right now, the use of strip searches by NSW police has come under intense scrutiny, both due to their prevalence and unlawfulness. The UNSW report Rethinking Strip Searches by NSW Police found that over the last 12 years strip search use has increased twentyfold.

UNSW law academic Dr Vicki Sentas co-authored the report, which was commissioned by the Redfern Legal Centre. She explained at its launch that “currently, if someone were to – in the police view – consent to a strip search, police don’t need to legally turn their mind to meeting the criteria”.

The tenth recommendation of the report is that given the nature of strip searches, people should not be able to consent to them.

“We think the law should be changed to make sure police do have to meet the legal criteria every time,” Dr Sentas stressed. “We don’t think it is possible in the particular circumstances in which police are directing you to do something that consent is possible.”

Its best to remember, however, that while you should decline consent and ask the reasons as to why you’re being searched, you should do along with an officer’s orders, because not complying can result in a charge of resisting arrest.

Read the full article here (Sydney Criminal Lawyers, 11 September 2019)