Daily Archives: October 29, 2014

Illegal Search by Police and the ‘Reasonable Suspicion’

Imagine this scenario: police officers spot two young men driving a damaged car which is capable of going high speeds.

Police pull the car over and, when they do, they notice the driver lean across and put something in the glove box.

Police then ask who owns the car and are told that it belongs to the driver’s mother.

Do you think that these facts are enough to enable a police search?

According to section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (the ‘LEPRA’), police must suspect one or more of the following things on reasonable grounds before they can search a person:

  • That the person possesses or controls property that is stolen or otherwise unlawfully obtained, or that has been used or is intended to be used to commit an offence,
  • That the person possesses a dangerous article in a public place that has been used, or is intended to be used, to commit an offence, or
  • That the person possesses or controls an illegal drug or plant.

Section 36 of the LEPRA imposes a similar requirement when it comes to searching cars.

The exceptions to the rule are where:

  • the suspect consents to the search,
  • there is a lawful search warrant, and
  • a specific power to search has been granted by legislation.

Back to the scenario discussed earlier – police ended up searching the car without the driver’s consent and found cannabis in the glove compartment.

These were the facts in the case of R v Rondo – which is the leading case on the legality of searches in NSW.

In Rondo, it was found that police did not have a suspicion on reasonable grounds to search the car.

The search was therefore held to be illegal.

So what constitutes a ‘reasonable suspicion’?

Rondo states that a reasonable suspicion:

  • Can be less than a reasonable belief but more than a possibility;
  • Must not be arbitrary but contain some factual basis; and
  • Can be gleaned through considering the likely state of mind of the police officer at the time, by reference to the nature and source of their information and all of surrounding circumstances

In Rondo, the court held that driving a damaged sports car that did not belong to the driver was not enough to constitute ‘reasonable suspicion’, even after police allegedly saw the driver lean over and put something into the glove box.

The court found that many young teens and adults drive cars that do not belong to them, so it would not be reasonable to connect this to a potential offence.

Equally, reaching across and placing something into a glove box was held to be an ordinary and everyday action, which did not ground the required suspicion.

Although the police did turn out to be right in this case, finding not only cannabis but a large amount of cash, the law is reluctant to allow evidence to be used in court if it is collected illegally or improperly.

Since police did not have grounds to stop and search the car, the illegally obtained evidence should have been excluded under section 138 of the Evidence Act, which says that illegally obtained evidence is to be excluded if the desirability of admitting the evidence is outweighed by the undesirability of admitting evidence obtained in that manner.

Although the initial Magistrate convicted John Rondo, he was acquitted by the Judge on appeal when the court held that the evidence that convicted him should never have been collected in the first place.

Now some might that Rondo should not have ‘gotten off’ at all because he was guilty.

And that acquittals like these mean that we’re letting criminals get away with it!

But arguments along these lines are problematic for several reasons.

It fails to take into account the many times that police DO get it wrong, subjecting innocent people to invasions of privacy.

And it also fails to consider that a court’s refusal to admit illegally obtained evidence is a powerful deterrent against police breaking the rules.

It should also be kept in mind that, under section 138, if the court finds that that the desirability of admitting the evidence outweighs the undesirability of admitting evidence derived in that way, it may still allow the illegally obtained evidence to be used in court.

For example, if there was a minor police indiscretion and a large quantity of drugs were found, the court may come to the view that the evidence of drugs should be admitted despite the minor illegality.

Police need to be kept accountable.

If police are allowed to routinely break the law, and to can get away with it, there would be no disincentive against them acting illegally.

The LEPRA and Rondo impose important safeguards against the misuse of police powers.

If you believe you have been subject to an illegal or improper search which has led to a drug charge, speak to an experienced drug lawyer right away.

Knowing what constitutes an illegal search is important, especially if the drugs found are the main piece of incriminating evidence against you.

If the evidence is found to be illegally obtained, you could easily be leaving the courtroom with a ‘not guilty’ verdict.

It may even be possible for your lawyer to get your drug charges dropped before they reach a defended hearing.