Under Part 4 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’) police have powers to search persons and seize items without a warrant. This fact sheet will help you understand these powers, including the topic of strip searches. These have affected young people disproportionately lately, especially at music festivals and other activities that attract young men and women.
FIELD STRIP SEARCHES Frequently Asked Questions
• What is a strip search?
A strip search means the search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove all of his or her clothes, and
(b) an examination of the person’s body (but not of the person’s body cavities) and of those clothes.
• When can police carry out a strip search?
Under section 31, a police officer may carry out the strip search if there is a suspicion, on reasonable grounds, that the search is necessary, and that the situation is serious and urgent enough for the strip search to take place.
• How is a strip search conducted?
The strip search must be conducted by a police officer of the same sex as the person searched, must not be conducted in the presence or view of a person who is of the opposite sex, must not be conducted in front of unnecessary people and must not search the genital area.
• What happens before the strip search?
The police officer must provide the person with evidence that the he/she is a police officer, unless in uniform, and provide their name and place of duty.
• Can police strip search a child?
A strip search cannot be conducted on a person who is under 10 years of age. However, if the child is over 10 years of age but under 18 years of age, the search can be conducted if the parent, guardian or representative is present.
• What about your privacy and dignity?
In addition, section 32 of the act provides for the preservation of privacy and dignity during the search. This includes:
- Informing the person about the search,
- Ask for the person’s co-operation,
- Conduct the search in a quick manner whilst providing reasonable privacy,
- It cannot be carried out while the person is being questioned,
- The person must be allowed to dress as soon as the search has finished,
- If any items of clothes are seized the person must be left with or given reasonably appropriate clothing.
• What would you tell a child to do if they were about to be strip searched?
SEARCHES WHILE IN CUSTODY (S.27 and S.28)
After arrest for an offence or warrant, a police officer may search the person at or after the time of arrest, if suspected on reasonable grounds that it is prudent to do so to ascertain if they are carrying anything:
- That would present a danger to a person,
- That could be used to assist a person to escape from lawful custody,
- That is a thing with respect to which an offence has been committed,
- A thing that will provide evidence of the commission of an offence,
- That was used, or is intended to be used, in or in connection with the commission of an offence
In addition, a police officer may search a person that has been arrested for the purpose of being taken to lawful custody, if suspected on reasonable grounds that it is prudent to do so to ascertain if they are carrying anything:
- That would present a danger to a person
- That could be used to assist a person to escape from lawful custody
If any of the above items are found, they can be seized and detained.
A person can be required to open his or her mouth, or to shake/move his or her hair, if the police officer suspects on reasonable grounds that a thing of a kind referred above is concealed in a person’s mouth or hair.
POWER TO SEARCH PERSONS (GENERAL)
Pursuant to section 21 of the act, the police can carry out searches of persons without a warrant, if the police officer suspects on reasonable grounds that the person has in their possession or under their control:
- Anything stolen or unlawfully obtained.
- Anything used or intended to be used in connection with a serious offence,
- A dangerous article that is being or was used in or in connection with the commission of a relevant offence,
- A prohibited plant or a prohibited drug.
To conduct the search, and under section 32, a police officer may:
- Run his/her hands over the person’s clothing
- Require the person to remove some of his/her clothing (coat, jacket or similar, gloves, shoes, socks and hat).
- Examine anything in the possession of the person
- Pass an electronic metal detection device over or in close proximity to the person’s outer clothing
- Carry out other actions as authorised by the act.
If you believe that you may have been illegally searched, O’Brien Criminal and Civil Solicitors are able to pursue your possible claim anywhere in Australia. Please don’t hesitate to get in touch with us today on (02) 9261 4281 or by email at email@example.com or via our contact form.