When Can a Police Officer Legally Search or Strip Search you in NSW?

 

They say that it is better out than in, but this may not be applicable in the same sense when being strip searched by a police officer…

It is reported that 28-year old Stuart Cook from Scotland purposely farted 3 times on a police officer who was conducting a strip search on him at the time.

It is also reported that when Cook farted on three occasions during the strip search, he also said to the police officer, ‘how do you like that?’.

How did it get to this point?  It all unfolded when police had arrived at the scene of an accident at the Lang Stracht in Aberdeen, Scotland when Cook was observed standing next to a car having a chat with the driver.

Cook was then arrested when police had smelled weed on him. He reported became angry after he was handcuffed while him and his car was searched by police.

Evening Express report that Cook had “screamed expletives”… “puffed out his chest towards police”.

It was at about this point, that police had informed Cook that he was going to be strip searched.

It’s been reported that Cook had made admissions to cannabis possession, however he was also found to be “behaving in a threatening or abusive manner by shouting and screaming aggressively, displaying aggressive body language, making a lewd remark towards police and intentionally flatulating in the direction of police.”

He was charged and ordered in Scotland to perform 75 hours of unpaid work, also known as community service.

While breaking wind, flatulating or to expel intestinal gas through the anus in this way at a police officer isn’t necessarily an offence in NSW (other than possibly amounting to an offensive conduct charge), it certainly appears to be in Scotland.

When Can a Police Officer Legally Search or Strip Search you in NSW?

There are various types of searches that police can do on you or your vehicle or your home or premises.

Click here for an outline on when police can search your car without a warrant in NSW, however, below is an outline of the law on when police can search or strip search you in NSW.

 

General Search by Police

A police officer in NSW may search a person without a warrant if the officer suspects on reasonable grounds that, the person:

  • Has possession of anything stolen or unlawfully obtained; or
  • Has possession anything used or intended to be used in or in connection of a relevant offence (a relevant offence includes ‘indictable offences’); or
  • Has possession in a public place a dangerous article that’s being or was used in the commission of a relevant offence; or
  • Has possession of a prohibited drug or plant.

This is outlined in section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

Alternatively, police may also search a person without a warrant if consent is provided by the person about to be searched.

Before searching a person, the officer here will be required to first obtain consent and provide the person with the officer’s name and place of duty in addition to evidence that he/she is a police officer (unless he/she is already in police uniform).

A police officer can also carry out a search of a person either with a warrant or where it’s without a warrant, at the time of or after the person is arrested for an offence, if the officer suspects on reasonable grounds that it’s prudent to do so for the purpose of finding out whether the person is carrying:

  • Anything that would present a danger to a person; or
  • Anything that could be used to assist the person to escape from lawful custody; or
  • Anything with respect to which an offence has been committed; or
  • Anything that will provide evidence of an offence; or
  • Anything that was used or is intended to be used in connection with an offence.

This is expressed in section 27(1).

 

Strip Searches by Police

A police officer is allowed to carry out a strip search of a person in a place other than a police station or place of detention if the officer suspects on reasonable grounds that:

  • The strip search is necessary for the purposes of a search; and
  • The urgency of the circumstances makes the strip search necessary.

A police officer may carry out a strip search of a person at a police station or other place of detention if:

  • The officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search.

This is reflected in section 31.

The purposes of a search are outlined above.

Police are not allowed to strip search a person under 10-years of age in NSW.

 

Can Police then Seize and Detain Anything Found from the Search?

Following a search without a warrant under section 21, police may seize and detain anything found if the officer suspects on reasonable grounds that the thing found:

  • Is stolen; or
  • Unlawfully obtained; or
  • If the officer suspects it may provide evidence of an offence; or
  • If the thing found is a dangerous article; or
  • If it’s a prohibited drug or plant.

 

To What Extent Can Police Do a General Search on You?

Here, police can only search the person to the following extent:

  • By quickly running his/her hands over the person’s outer clothing;
  • Require the person to remove a coat or jacket or other similar clothing and any gloves, shoes, socks or hat (but not all of the person’s clothing unless it is a legal strip search which we will discuss further below);
  • Examine anything in the person’s possession;
  • Pass an electronic metal detector device over or in close proximity of the person’s outer clothing or anything removed from the person.

 

Rules for Police When Conducting a Strip Search

There are rules that police must comply with when conducting a strip search which are expressed in section 33, and some of these rules include the following (section 33):

  1. The strip search must be conducted in a private area.
  2. The strip search must not be done in the presence or view of a person who is of the opposite sex.
  3. Generally, the strip search must not be conducted in the presence or view of a person whose presence isn’t necessary for the purpose of the search.
  4. A parent, guardian or personal representative of the person if its reasonably practicable in the circumstances can be present during the search if the person being searched doesn’t object.
  5. Where the person searched is a child aged at least 10 but less than 18, or a person impaired intellectually, the strip search must be done in the presence of a parent or guardian. If that isn’t acceptable to the person being searched, it may be done in the presence of someone eels who isn’t a police office and who is capable of representing the interests of the person being searched (provided the person being searched doesn’t object).
  6. The strip search must not search the person’s body cavities or examination of the body by touching.
  7. The strip search must not remove more clothes than the person conducting the search considers on reasonable grounds to be reasonably necessary for the purpose of the search.
  8. The strip search must not involve more visual inspection than the person conducting the search considers on reasonable grounds to be reasonably necessary for the purpose of the search.
  9. The strip search may be done in the presence of a medical practitioner of the opposite set to the person searched if the person being search doesn’t object to it.

 

Privacy and Dignity During a Search

In addition to the above, the police are required to preserve dignity and privacy of the person being searched. The law tries to protect this by imposing the following rules for police when conducting a search (under section 32):

  1. The officer is required to inform the person being searched that he/she will be required to remove clothing during the search, and why it’s necessary to do this.
  2. The officer is required to ask for the person’s co-operation.
  3. The officer is required to do the search in a way that gives reasonably privacy and conduct the search as quickly as reasonably practicable.
  4. The officer is required to conduct the least invasive kind of search practicable in the circumstances.
  5. The officer is required not to search the genital area, or in the case of a female or transgender who identifies as female, the person’s breasts unless the officer suspects on reasonable grounds that it’s necessary to do so for the purpose of the search.
  6. The officer doing the search must be of the same sex as the person being searched.
  7. The search must not be conducted while the officer is asking questions (in relation to the investigation) to the person being searched. (this doesn’t apply if the questions are regarding issues of personal safety).
  8. The person searched must be allowed to dress as soon as the search concludes.
  9. If clothing is seized by police from the search, the officer must ensure the searched person is left with or provided reasonably appropriate clothing.

Have a question about the law on police strip search in NSW? Call to discuss it with one of our experienced Sydney criminal lawyers.

Our Sydney Criminal Law Firm is available 24/7 to call to arrange a free appointment with a lawyer in person or over the phone.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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