(11B) Searches; Strip Searches PDF

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SEARCHES; STRIP SEARCHES Stop and search powers 1. Upon what bases are police empowered to: (a) stop and search vehicles; Section 36A of LEPRA outlines the power to stop vehicles with a warrant: A police officer may stop a vehicle if the police officer suspects on reasonable grounds that the driver of, or a passenger in or on, the vehicle is a person in respect of whom the police officer has grounds to exercise a power of arrest or detention or a search power under this Act or any other law. Section 36 of LEPRA outlines the power to stop vehicles without a warrant (b) search premises; (1) a ploice officer may enter premises if the police officer believed on reasonable grounds that (c) search persons? Section 21 outlines the power to search persons and seize and detain things without a warrant. It provides: (1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists (a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained, (b) the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence, (c) the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence (d) the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985., a prohibited plant or a prohibited drug. (2) A police officer may seize and detain— (a) all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and (b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and (c) any dangerous article, and (d) any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985 found as a result of a search under this section. 2. In Black [2017] NSWDC 326 (Textbook: 502), did the police officer have a lawful basis for conducting the search of the appellant? Why/ why not? No. On the facts it seemed as though the officer was conducting a search just for fun or just to target the individual, rather than conducting a search with a reasonable belief. A reasonable suspicion cannot be drawn from someone being in an area that is renowned for break-ins and because the person gives you attitude. 3. Do you think police sniffer dogs should be considered capable of providing grounds for reasonable suspicion that a person has committed or is committing a drug-related offence? See case of Darby (sniffer dog authority)

Also see section 148 of LEPRA, general drug detection with dogs in authorised places 4. In what circumstances are police strip searches lawful? Section 31-34A in LEPRA outlines strip search powers: S31: (a) in cases where search is conducted at station or other place of detention, only if the officer suspect on reasonable grounds that a strip search is necessary (b) in cases where search is conducted in any other place, the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary. S32 is about the preservation of the persons privacy nd dignity during the search S33 is about the rules of the actual strip search, basically what can and can’t be done by the officer and the person getting searched. S34 states that a strip search cannot be conducted on a person under the age of 10. S34 surrounds consent and that question of consent needs to be raised prior to conducting a search. 5. Why was the strip search considered to be unlawful in Fromberg [2017] NSWDC 259? 6. What are the implications of an unlawful or improper search? 7. Have police been appropriately exercising the power to strip search persons for suspected drug possession at music festivals? PROBLEM QUESTION (number 2 on canvas) Stacey is attending a music festival. A police officer approaches her with a dog. The dog sits down, which the police officer explains to Stacey is a positive drug detection indication. The officer then explains to Stacey that she should follow him to a tent where he will perform a strip search. He says that all the female officers are busy, takes her to a tent, and then asks her to remove her clothes and underwear. In her bra he finds two pills, which he suspects to be ecstasy. The officer takes down her details and tells her that he will be issuing her a criminal infringement notice for drug possession. Advise Stacey on whether the search was conducted lawfully. Tips: Look at: - Ss 3, 21, 31, 32, 33 - Darby (police dog searches) - Fromberg (at no point did the officers conduct a frisk search of his lower body before performing the more invasive strip search) - Attalla and Fromberg (Implications) Intro - State that police have powers to search under specific section -

The defence will argue that it was an unlawful search under section 21 and 31 of LEPRA. The defence will have to prove that there was not a reasonable suspicion for the search to be conducted as well as proving that the search was unlawful.

Reasonable suspicion? - Write about Darby and the success rate of dogs and the fact that the dog sitting down couldn’t be the only factor that gives the officer a reasonable suspicion, there needs to be other contributing factors. - Was it a crowded space?? Because it was at a music festival, where the presence of drugs is high, the dog could have been confused and is thus another reason as to why the dog couldn’t be the only factor. - Must first have reasonable grounds for search s21 o Rondo: Streat & Bauer o Two step test - S31 also has a reasonable suspicion test o Rondo: Streat & Bauer o Two step test o APPLY THESE CASES TO THE LAW - Fromberg (at no point did the officers conduct a frisk search of his lower body before performing the more invasive strip search) Was the search lawfully conducted? - See ss 32, 33 - S32 (7) a search must be conducted by a police officer of the same sex as the person searched - Strip search not lawfully conducted - Note that it is in a private area (s33 (1)(a) - Facts don’t state Stacy’s age, she could under age and therefore another factor that would benefit the defence in arguing that the search was unlawful Conclusion Implications of unlawful search - Stacy could bring a civil action against the police - Potential admissible evidence - Complaints could be made - Mental health implications on Stacy (such an intrusive process could be triggering for Stacy) It would’ve been lawful if the officer first conducted a frisk search and if a female conducted the strip search, but they didn’t bother and went straight to strip and by skipping the frisk search, and plus a male conducted the strip search....