“WAIT, CAN YOU DO THAT OFFICER?” – Your rights relating to Police searches

One of the most common questions that is often asked by anyone with respect to police matters is when can and can’t police search you, your vehicle or your house.

There are two legal powers to conduct a search under:

1. The Controlled Substances Act (section 52(6); and
2.  Summary Offences Act (section 68)

WHEN CAN POLICE SEARCH YOU?

In short, police need to have either:

• your permission;
• a warrant; or
• reasonable cause.

(1) Permission

If police ask you whether they can search you, items in your possession (e.g. a bag), a vehicle, or even your house and you give them permission to do so, then they are able to. Anything they find can then be used as evidence against you.

(2) Warrants

• Warrants are specific documents that authorise a police officer to search a premise, a person or even arrest a person. A general search warrant is issued for 6 months and allows police to conduct searches that they may think appropriate but must have a reasonable suspicion that a serious offence has been / is being committed.
• Warrants which can be issued according to different legislation. For example, under the Controlled Substances Act 1983 (SA), a warrant may be issued (where appropriate) to search premises and seize items in relation to drugs.

Different warrants authorise different powers to police depending on the purpose of the warrant. Any searches or seizure of items need to pertain to the warrant that authorised them access to the relevant location in the first instance.

For example, when police received information about a man growing cannabis as well as keeping an unlicensed firearm, an application for a warrant was made to search for the drugs.  That application was denied.  They did however receive a warrant to do an audit on firearms as they knew he did, in fact, have registered firearms also.

When police attended, they checked the firearm stored in a locked cabinet and on asking about ammunition were shown to a drawer below the TV.  Ammunition was also found loose on a bookshelf.  This led them to search the rest of the premises and not long after located cannabis and equipment in a bedroom.

He was charged with drug trafficking, diverting electricity and possessing (drug) equipment.

When considering the legal arguments about the issue of valid searches, the Court on being aware of the first application, found that the search in the bedroom went beyond the reason they attended.

Even though there was a significant quantity of cannabis located, the search occurred despite a refused warrant application and therefore the search was unlawful.  This meant that the cannabis was inadmissible and could not be used.  (R v King [2017] SADC 39)

(3) Reasonable Cause

• If police suspect on reasonable grounds that an offence has or is being committed and you may be involved, they may search you, your car, a bag or your house.
• The suspicion or reasonableness is a state of mind but must be more than a ‘hunch’.

A recent case involved an appellant charged in the District Court with two counts of trafficking, namely ecstasy and heroin, on 2 July 2013. She applied before trial for exclusion of evidence by two police officers of finding the drugs in her handbag on the ground that the detention and search of her Commodore vehicle and person on that day was unlawful.

Police gave evidence in a preliminary hearing (voir dire) that she formed enough suspicion to pull over the vehicle and search the vehicle and driver. The officer did not articulate what it was that she suspected.  The officer identified the grounds for her suspicion being that the house from which the Commodore emerged was associated with drugs and drugs had been found in the Commodore on a previous occasion in a different location being driven by different persons.

A Judge ruled before trial that the police officers had the requisite reasonable suspicion for the purposes of section 52 of the Controlled Substances Act 1984 (SA) and in any event he would have exercised his discretion not to exclude the evidence. The appellant was subsequently convicted at trial by a jury on both counts. This was appealed to the Full Court; the appeal was allowed, and the convictions were set aside and substituted with an acquittal on both counts. 

DOES THIS APPLY WITH TRAFFIC STOPS?

Yes.  Police can either stop you because they have ‘reasonable suspicion’ to do so and undertake a search; or

If they stop you for a random traffic stop (which they are able to do so as they can perform random breath testing at any time), and during that random traffic stop they then form a reasonable suspicion, that would give them grounds to search you and your vehicle.

SO, IF THE SEARCH WAS UNLAWFUL, DOES THAT MEAN ANYTHING THEY FIND GETS THROWN OUT?

The short answer? Not necessarily. An unlawful search does not simply mean anything they find is “thrown out of court”.

Where it may be that a search is unlawful, an application or interim argument needs to be had to determine the lawfulness of a search.

The Court has the discretion to determine whether, if a search is unlawful, any evidence resulting from such search should be deemed inadmissible (not able to be used as evidence in the case).