Criminal Law | Illegal Searches

Illegal searches explained by our criminal lawyers

The law demands that police must have a suspicion ‘on reasonable grounds’ that drugs are to be found on a person or vehicle before a search can be performed.

Failing to adhere to ss 21 and 36 Law Enforcement (Powers & Responsibilities) Act 2002 (th ‘LEPRA’) can lead to the case being ‘thrown out of court. ’

What is a ‘Suspicion on Reasonable Grounds’?

The Courts have found that:

(a) A reasonable suspicion considers a less than reasonable belief but more than a possibility, that there were drugs present at the specified time.

(b) Reasonable suspicion cannot be arbitrary. Factual basis for the suspicion must be available to the Court.

(c) The officer’s source and its consent must be assessed at all costs.

See: R v Rondo (2001) 126 A Crim R 562.

Situations where a ‘reasonable suspicion’ will not be considered are:

  1. A situation wherein a police officer is patrolling an area known for drugs and decide to search someone simple because they seemed to be nervous.

2. When a person who seems to be nervous or agitated is stopped for a breath test.

3. When a person is searched because he or she – or someone he or she is with – has a previous drug-related conviction.

4. ‘random’ or ‘arbitrary’ searches.

Situations where a ‘reasonable suspicion’ may be considered are:

  1. When police officers witness what appears to be a drug transaction.

2. When the police receive a detail report of a drug activity happening real-time. The report must be detailed and the descriptions must match the suspect or the vehicle to be searched.

3. When the police observe an individual whose actions highly suggest drug possession. For instance, the person is seen discarding or hiding an object.

Getting the charges dropped in Court

If the authorities that searched you did not have a ‘reasonable suspicion’ to conduct a search, our drug defence lawyers in Sydney will draft a detailed letter to the Local Area Commander. We will formally request that the case against you – our client – to be withdrawn and inform them on the possible legal costs if the said charges are not withdrawn.

In the event that the authorities refuse to withdraw the drug charged, our drug defence lawyers will fight to have the charges dismissed in court. More often than not, we have legal costs awarded to our clients upon whom the police have conducted an illegal search on.

The law on excluding evidence

The Evidence Act section 138 states that a court may not admit to illegally obtained evidence such as those gathered through illegal searching if the undesirability of admitting illegally obtained evidence outweighs the desirability of admitting said evidence.

To make a decision, the Court will consider the following:

  • The value and impact of the evidence in all proceedings.

  • The level of impropriety used in obtaining illegal evidence and how much the law was violated.

  • If the violation of law or impropriety was done on purpose or recklessly.

  • The level of difficulty in obtaining the evidence if the authorities opted to follow the legal process of obtaining evidence.

Executive Legal’s defence lawyers in Sydney work fiercely to persuade the prosecution and the courts that evidence of drugs that are obtained through illegal search are grounds for exclusion with the intention of having the cases dropped.

The police have the power, under the Law Enforcement (powers & responsibilities) act to search a person if they have, on reasonable grounds, a suspicion of illegal activity. In cases of random or arbitrary searches, reasonable suspicion is not required. Situations where reasonable suspicion is lawful are those:

  • Where the officer believes a drug transaction is taking place,

  • Officers receive detailed reports of drug activity taking place with matching suspect descriptions,

  • Whereby police observe a person of whom they believe is involved in drug activity, i.e. hiding or disposing of objects related to drug use.

If the authorities that searched you did not have a ‘reasonable suspicion’ to conduct a search, our drug defence lawyers in Sydney help you reach the best outcome for your situation. We will formally request that the case against you – our client – to be withdrawn.

 

 

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