The New South Wales Police are entitled to pull you over when you are driving a vehicle, if they have reason to believe you have committed a criminal or driving offence. However, Police are not allowed to search a car when they have pulled someone over. Accordingly, they may ask for permission for the execution of a search of the vehicle.
If an individual agrees, this is called a search by consent. However, the absence of knowing that you have a right to refuse consent for police to search your vehicle can still amount to there being an invalid or involuntary consent. If the absence of knowledge of a right to refuse consent in the circumstances suggests that your will has been overborne (or consent was involuntary) by example of coercion or tricks or bullying.
The police are not permitted to use force to search your car.
However, Police are allowed to search your vehicle under certain conditions without a search warrant. For NSW Police to use this power to search your car they must have reasonable suspicion. The factors that can amount to a reasonable suspicion are defined within the Law Enforcement (Powers and Responsibilities) Act. If you or someone you know has had their car searched unlawfully be sure to seek professional legal advice here.
If there is no search warrant, the vehicle can only be searched if the police officer has ‘reasonable grounds’ for police suspecting any one of the following:
– The vehicle has prohibited illegal drugs or someone in the vehicle has prohibited drugs;
– The vehicle or person in it has something stolen or unlawfully obtained;
– The vehicle is being used in connection with an offence;
– The vehicle has anything inside it which is connected to an offence; or
– The vehicle has a dangerous article inside it which is to be used in connection with an offence in circumstances the vehicle is in a public place or school.
There are circumstances (or the vicinity) in which the vehicle is in a public place or school that give rise to a serious risk of public safety and exercising the power to search the vehicle may reduce that risk. This is reflected in section 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
If any one of the above legal ways for police to search a vehicle don’t apply, then the police stop search and detain will be considered illegal. If the search is considered illegal, then the Court will decide whether or not to exclude the evidence obtained after the illegal search under section 138 of the Evidence Act 1995 (NSW).
The Magistrate or Judge can exclude any evidence obtained after the illegal search, under s138 of the Evidence Act, if the desirability of allowing the evidence is outweighed by the undesirability of letting the evidence into evidence.
In determining whether the desirability is outweighed by the undesirability of admitting the evidence after it was illegally obtained by police, the Judge or Magistrate will look into the gravity of how serious the illegality by police was, how serious the breach of the civil rights of liberty were, any breach of the International Covenant on Civil & Political Right.
While there may be certain conditions for a Police Officer to search a vehicle without a warrant, Police may also search the vehicle by utilising a sniffer dog. Under section 148 of the Law Enforcement (Powers & Responsibilities) Act of 2002, a Police officer can utilise a sniffer dog without the need for an execution of search warrants.
This will be done to determine if there are any drugs within someone’s car, that would warrant a drug offence charge. The sniffer dog will be used as part of general drug detection, the dog will be able to detect any potential presence of drugs within a car.
If there is detection by a sniffer dog, it will enable the police to legally search a car without a warrant. If you or someone you know has been charged with drug related offences be sure to seek professional legal advice from our criminal defence lawyers here.