What is an Illegal Search?

What is an illegal search?

Section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘the LEPRA’) provides that a police officer may, without a warrant, stop, search and detain a person, and anything the person possesses or controls.

If the officer suspects on reasonable grounds that the person possesses or controls:

1. Anything stolen or otherwise unlawfully obtained
2. Anything used, or intended for use, in connection with the commission of an offence
3. A dangerous article in a public place which is being used, or was used, in connection with the commission of an offence, or
4. A prohibited drug or plant.

Section 36 of the LEPRA provides that a police officer may, without a warrant, stop, search and detain a vehicle.

If the officer suspects on reasonable grounds that the vehicle:

1. Contains, or a person in it possesses, anything stolen or otherwise unlawfully obtained
2. Is being, was or may have been used in connection with the commission of an offence
3. Contains anything used or intended for use in connection with the commission of an offence
4. Is in a public place or school and contains a dangerous article that is being, was or may have been used in connection with the commission of an offence
5. Contains, or contains a person who possesses or controls, a prohibited drug or plant, or
6. Is likely to give rise to a serious risk to public safety due to circumstances in or near a public place or school, and a search may lessen that risk.

An officer can search a person or vehicle without a reasonable suspicion if the officer has a valid search warrant, or if the officer has been given informed consent by the person to whom the search relates.

The search is illegal if police do not comply with these rules, and any evidence derived as a result of the search such as prohibited drugs, dangerous articles, or items used in the commission of an offence is subject to being excluded under section 138 of the Evidence Act 1995.

This provides that evidence derived improperly or in contravention of a law, or as a consequence of an impropriety or contravention of a law must not be admitted into evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way.

In making that determination, the court must take into account:

1. The probative value of the evidence
2. The importance of the evidence in the proceedings
3. The nature of the alleged offence
4. The gravity of the impropriety or contravention
5. Whether the impropriety or contravention was deliberate or reckless
6. Whether the impropriety or contravention was contrary to, or inconsistent with, a right recognised by the International Covenant on Civil and Political Rights
7. Whether any proceeding has been, or is likely to be, brought for the impropriety or contravention, and
8. Any difficulty in obtaining the evidence without impropriety or contravention.