Can I Get Drug Charges Dropped Due to an Illegal Search?

If drugs have been found either on you or on your property during an illegal search, it may be possible for you to get the charges dropped.

If police knew that illegally obtained evidence would be tacitly approved by its allowance into the courtroom, it would undermine the need for them to play by the rules and thereby erode the protection that we have against illegal searches.

Police must have a reasonable suspicion to search you – and a reasonable suspicion must be more than just looking a bit nervous, even if you are in a known drug area.

Just because you or someone you are with has been previously convicted of drug offences, this does not give police the necessary suspicion to make a search.

Police have different powers depending on whether they are conducting personal searches, or houses or land.

A reasonable suspicion is one that is more than a possibility but less than a belief.

Even the Police Code of Practice acknowledges that there must be some factual basis for the suspicion, so if police have stopped you without any good reason, the search is illegal.

However, getting charges dropped may require the expertise of an experienced criminal lawyer. They will be able to write to the Local Area Commander and point out the use of illegal evidence and may persuade them to drop the charges.

Detailed submissions outlining the holes in the prosecution case can be remarkably effective at getting cases dropped.

And if, despite the written representations to the prosecution, the case goes to trial anyway, a judge or magistrate may throw it out.

Under the Evidence Act, courts have the power to throw out any improperly or illegally obtained evidence.

However if the value of including the evidence outweighs the undesirability of allowing illegal evidence in, the evidence will be admissible in court despite the fact that it was gained illegally.

The more serious the offence, the more likely it is that public interest will actually require the evidence to be allowed in court.

And if your case does get thrown out, you may even be able to get a costs order in your favour – meaning that the prosecution has to pay your legal costs.

Police don’t need a warrant to use sniffer dogs to detect illegal drugs nor do customs officers need a warrant or even reasonable suspicion to search anyone’s luggage.

And just because you have been searched it does not mean that you are under arrest, although if you are arrested you may be searched.

And as well as personal searches these there are of course property searches, which can include your car, your house or your workplace.

If the police only have a search warrant to search a particular area of your house, they should restrain their search to that particular area – they can’t just search the rest of your house, unless an exception to this rule applies.

Exceptions include:

  • for the safety of a police officer or someone else;
  • if they believe that evidence is being destroyed; or
  • if they walk through one area of the house to get to the area that they are searching.

It is important to note that any illegal drugs that are in plain view of police can be seized without a warrant, even if the police only have lawful access to your premises for a completely unrelated reason.

For example, if police have come to arrest a felon, and while doing so, happen to notice a stash of drugs, they are allowed to seize your drugs.

If you are unsure of whether or not you have been searched illegally, or want more information on how you may be able to get your particular case dropped due to an illegal search, it may be best to speak to an experienced criminal lawyer who will know the best way to proceed in your individual case.

Ugur Nedim About Ugur Nedim
Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Drug Defence Lawyers.

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