Police found to have conducted unlawful stop and search
4th Mar 2021
Two men were spotted by police walking at night (not late) on a street in Burwood in Sydney’s inner west. The patrolling police thought that the men looked suspicious so decided to stop and search them.
Observing that one of the men was sweating, appeared nervous and had dilated pupils, the police officers suspected that the two were carrying drugs. The men, who did not live in the area, told the police that they were waiting for a friend.
The police proceeded to search the two men. They found no drugs but discovered mailbox keys that they suspected were housebreaking implements. The men were charged.
But was this stop and search legal?
What are reasonable grounds for a stop and search?
When the case went to court, the magistrate watched the police body-worn camera footage and questioned whether the police had conducted a lawful search. Her concern was that if the police did have a suspicion, was it reasonable?
Under s21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), police can stop and search someone if they suspect (on reasonable grounds) that they have something in their possession that was illegally obtained or could be used to commit an offence.
The question for the Court was: what constituted reasonable grounds to stop and search the two men?
This same question was brought to light in another leading matter in Azar v DPP  NSWSC 132, where police had stopped and searched a man who they suspected of possessing prohibited drugs after observing his behaviour.
The key principles that emerged from this matter were that a reasonable suspicion involves less than a reasonable belief, but more than a possibility, and there needs to be some factual basis for the suspicion.
Police prosecutor argues that search was legal
During the case, the police prosecutor raised several points to support the argument that the search was legal, including that:
- the officers were experienced and trained in proactive policing;
- the offenders appeared nervous and were sweating when stopped;
- one of the men’s pupils were dilated;
- one of the men had two mobile phones; and
- the time of night.
Defence maintains that there was no factual basis for suspicion
In their defence, the men argued that while police suspected them of possessing drugs, none were found. The man with dilated pupils was on pain medication which affected his eyes and both men were cooperative and did not resist or flee. Further, rather than acting on any report or complaint from the public, the police were merely patrolling the area.
Most importantly, in the men’s evidence, the police officer stated that where the men were walking was not considered a crime hot spot.
Can police stop and search without reason?
In her ruling, the magistrate stated that it was evident in the video that the officer had already formed an intention to search the men. The manner of the officers was argumentative and officious while in comparison, the men were cooperative and polite.
While the officer thought that two men walking at that time of night in an area where they did not live was suspicious, this was not sufficient grounds for the Court.
Accordingly, the search was held to be illegal.
Powers of police must be executed very carefully
According to s138 of the Evidence Act 1995 (Cth), evidence can be excluded if improperly or illegally obtained unless it has some probative value or the offence is so serious that the evidence has to be admitted (such as terrorism, imminent commission of a serious crime, someone at risk).
The illegal police search that uncovered the mailbox keys led to one of the men being charged with possessing housebreaking implements. The keys were the main piece of evidence in the police case, and without them the police could not proceed.
The magistrate determined that the offence, while serious, was not at the highest level of seriousness and that the officer would have been aware of his responsibilities under the LEPRA. She noted that these are important powers that need to be executed properly and in the circumstances, this did not occur.
The Court ruled that the evidence of the search was inadmissible. The prosecution offered no further evidence and the matter was withdrawn and dismissed.
This is an edited version of an article that was first published on Stacks Law.
Mark Warren is a lawyer in the criminal law team at Stacks Collins Thompson. He enjoys working in advocacy and in the courts. Mark helps many people from disadvantaged backgrounds and those facing significant challenges, such as drug and alcohol addiction and mental health problems.
Before becoming a lawyer, Mark worked in the not-for-profit and social justice sector in media and communications roles. He spent 20 years as a television and radio journalist and reporter. Mark holds a science degree majoring in psychology and neurophysiology and an arts degree majoring in politics and Indigenous studies in addition to his legal qualifications.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).