Among the numerous powers conferred to NSW police officers under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) is the power to conduct a search. The basic power to search without a warrant is contained in s 21 which relies on the concept of “reasonable suspicion”. In instances where the officer suspects on reasonable grounds that a person has in their possession
- a stolen item OR
- an item/dangerous article that was/is intended to be used in the commission of an offence OR
- a prohibited drug
the officer can stop, search and detain the suspect.
An important question arises when considering police search powers, and indeed other powers including arrests and move on orders; what is reasonable suspicion? In R v Rondo, it was ruled that a reasonable suspicion involves ‘less than a reasonable belief, but more than a possibility’. The suspicion must be grounded in some factual basis. Additionally, reasonable suspicion is taken to be what goes on in the mind of the officer at the time that their power is being exercised.
Searches can be conducted anywhere that a police officer’s suspicion has been raised. However, officers have identified music festivals as hotspots that see large amounts of drug traffic and possession, and naturally, the number of searches that occur in these areas is higher. Railway stations have also been the targets of high police activity.
LEPRA authorises 3 types of searches in the exercise of this power: “frisk” and “ordinary” searches (s30) and “strip” searches (s31). Strip searches have become the most scrutinised form of search. What is meant to be a last resort for use in “serious and urgent circumstances” has become a regularly exercised power which, critics have suggested, is commonly conducted without adequate legal grounds. A report conducted by the University of NSW in August 2019 cites the “broadly defined threshold” of s31, which fails to give proper guidance as to when a strip search can be carried out, carries a “potentially widespread” risk of misuse. The rules governing the conduct of strip searches are contained within s33. In summary, they state that a police officer may not exercise their power more than is reasonably necessary to conduct the search. However, some cases detailed in the report suggests officers used invasive searches to “punish and humiliate” the suspect. Yet, despite this, the number of strip searches state-wide has increased exponentially in the past 12 years, from 277 in 2006 to 5483 in 2018. The same report found that only 30% of searches result in charges. The cause of this spike is thought to be fuelled by the increasing use of police sniffer dogs.
Police sniffer dogs have become staples of music festivals. The case of Darby v DPP found that a sniffer dog sitting down next to a suspect (which indicates that they may have drugs) is a tool which can be used to satisfy an officer’s reasonable suspicion, even though the accuracy of sniffer dogs has been thrown into question. Statistics suggest that the vast majority of searches where suspicion was raised through a sniffer dog are unsuccessful in discovering a concealed item. A recent NSW Police report into the 2018 “Splendour in the Grass” festival is a prime example of the inefficacy of sniffer dogs; out of 433 positive detections, 143 strip searches were conducted, and of those, only 11 people were charged with an offence.
When viewed holistically, it is clear to see that reforms are required in this area of the law. Strip searches have increased 20-fold in the last 12 years partly due to the use of sniffer dogs. Police are forming their reasonable suspicion all too easily, and together with the known inaccuracy of sniffer dogs, this leads to a significant portion of strip searches lacking legality. The law regarding strip searches does not adequately protect people’s rights and hold the police accountable.