Post-Lockdown Strip Searches Are Back, Including the Dreaded Squat and Cough

Sniff Off posted a 5 November warning on its Facebook page, alerting the public that police officers were strip searching Sydney Star Casino patrons at that time.

The anti-drug dog campaign did so, as it works on the understanding that NSW police sniffer dog and strip search operations are highly flawed.

This is not the first time that police strip search practices at the Star have come under scrutiny, as the sole NSW police oversight body, the Law Enforcement Conduct Commission (LECC), has outlined in the past that it had received reports about a questionable search outside the venue.

The 18 January 2019 incident involved a woman being asked to remove her tampon by an officer during a strip search, after she was indicated by a drug detection dog. Although the police watchdog did not monitor the subsequent inquiry into this matter.

A joint initiative by the NSW Young Greens and MLC David Shoebridge, Sniff Off has long been calling out these operations because statistics show that when dogs indicate, they get it wrong two-thirds to three-quarters of the time. And when strip searches are applied, they’re most often unwarranted.

As evidenced by the recent Sniff Off post, now that NSW is out of lockdown, strip search operations are back on, so it’s a prime time to swot up on the laws around them, especially as the just released NSW police response to LECC recommendations reveals controversial search practices will continue.

Legislated protocols

Most of the powers the NSW Police Force can apply are contained in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). And the protocols relating to warrantless personal searches are set out under part 4 division 4 of the legislation that’s commonly referred to as the LEPRA.

Section 33 of the LEPRA permits a strip search be conducted if an officer “suspects on reasonable grounds” that the removal of clothes is warranted for search purposes. And when this is done outside of a police station, “the seriousness and urgency of the circumstances” must necessitate it.

Provisions to ensure privacy and dignity are contained in section 32 of the Act. These include requirements that an officer states why a strip search is necessary, asks the search subject for cooperation, and ensures the procedure is done in haste and as privately as possible.

A searching officer must be of the same sex as the person to be searched. And no questioning can occur during the procedure.

The rules of conduct are in section 33. These include that a search must be in a private area, and out of view of the opposite sex, or anyone not necessary for the purposes of the search. And a parent, guardian or personal representative of the search subject can be present, regardless of their sex.

If a search is conducted on a person between 10 and 18 years old, or a person who has impaired intellectual functioning, there must be a parent or guardian present. Although, this rule can be broken if an officer considers the procedure is necessary for the safety of the person being searched.

A person’s body cavities cannot be searched and nor can an officer touch a person. Only necessary clothing should be removed. And section 34 prohibits the strip searching of children under the age of 10 years old.

Section 34A of the LEPRA stipulates that an officer must ask the strip search subject for their consent prior to the procedure being carried out. But if consent is refused, the search can proceed. And an officer has to provide evidence that they are a police officer, as well as their name and place of duty.

Controversial practices remain

The campaign to rein in the ever-broadening warrantless use of sniffer dogs in public places has been gaining traction for a decade now. And over recent years, the accompanying use of strip searches has come under scrutiny due to the stark rise in their application.

This was evidenced with the release of statistics in 2018, which initially showed that strip search use in relation to drug dogs had doubled over 2016 and 2017, while further figures revealed that over the four years to June 2018, strip search use in general had risen by 47 percent in this state.

The LECC announced in late 2018 that it was investigating NSW police strip search use due to a number of complaints. And this led to several preliminary reports on particular incidents, which culminated in the December 2020 final report, with its accompanying 25 recommendations.

The NSW police response to recommendations was published a fortnight ago. A key issue raised over recent years has been around searching officers moving a person’s clothing to look beneath it or running a finger under their waistband, collar or sleeves for the same reason.

The police watchdog recommended that the NSW Police Personal Search Manual be updated to reflect that these actions are in effect a strip search. But NSW police declined this recommendation, stating that running fingertips around the edges of clothing does not constitute a strip search.

Another issue involves a section of the manual that permits officers to ask a strip search subject to lift their testicles, part their buttock cheeks, lift their breasts or squat down, as these powers don’t appear in the LEPRA. And the LECC made several recommendations in relation to them.

In response, NSW police has updated its manual to clarify that these procedures are not routine. And while it agrees that breasts and genitals should not be touched, it considers no special stipulation is needed to prevent this, as touching in general is already prohibited.

Sexual assault by the state

Many strip search critics oppose the invasive procedure as they consider it to constitute state-sanctioned sexual assault. And it can be particularly triggering for survivors of past sex crimes.

Although being asked to remove all of one’s clothing by two strangers with guns can traumatise most people.

The takeaway from the NSW police responses is that when finding oneself naked behind a screen in public, you might find yourself being asked to squat and cough. And if you resist a strip search, the touching of breasts or genitals may occur, as officers are empowered to use force when necessary.

On the subject of consent, the golden rule is do not give it. So, when an officer informs you that a strip search is necessary, follow their orders and don’t resist but make a point of not consenting to their request.

The reason for this is that if a strip search is later found to have been conducted illegally, it’s likely subsequent charges will be thrown out of court.

However, if you do consent to a strip search that later is found to have been performed unlawfully, it’s still considered legal and resulting charges will stand.

Main image: Police and a drug detection dog at Parramatta Train Station in 2017 by Sniff Off is licensed under CC BY SA 4.0