The following Q&A is with Barefoot Law, who have offices in Mullum and Byron.
Q: What are your rights if stopped by a sniffer dog?
A: If a sniffer dog identifies you, it is not allowed to touch you. Police use sniffer dogs to find ‘reasonable grounds’ for a search.
You have some obligations to assist police with their inquiries, such as giving your name and address. As far as possible, be polite, calm and co-operative. You are not required to answer any further questioning, but you are entitled to ask and know who the police officer is, their rank, and station.
Be careful, because if you don’t provide your name and address, the police might decide to lay charges for offences such as resisting arrest, hindering or abusing an officer.
Under the current NSW legislation, police need a ‘reasonable suspicion’ to stop, search, and detain a person.
To decide a ‘reasonable suspicion’ police look at a range of factors, such as time and place, a person’s behaviour, and other factors.
Just being at a music festival is not a ‘reasonable suspicion’ in itself.
Q: What if you are asked to empty your pockets?
A: Comply with request. It is totally okay to say you do not give your consent to the search, but that you are going to comply. Police are not allowed to question you while the search is in progress.
Q: What if you are asked to be strip-searched?
Strip-searches must be conducted with certain rules; they must be a last resort so to speak, rather than a starting point. To perform a strip-search police must believe there is a ‘seriousness’ and an ‘urgency’ to perform a strip-search. The police have to follow the law about strip-searches, such as making a support person available for you during the search and offering privacy.
The person being strip-searched must be able to maintain dignity and privacy in the process.
The person being searched must also be able to request a same-sex officer conduct the search.
The officer cannot touch your body, nor inspect body cavities or genitals, but they can ask to look inside your mouth or under your hair.
Only one officer may be present for the strip-search, so no extra officers watching the search. The person being searched must be allowed to dress as soon as possible after the search. A strip search must not involve the removal of more clothes than necessary for the purposes of a search.
If a person is under 18 years of age, a parent or guardian or acceptable person should be present. But if the police think that evidence might be destroyed or concealed by a delay in waiting, they can perform the search at the time without the parent.
But police must record a reason why they had to perform the search with urgency. There are always differences in circumstances that may apply, and it is best to seek legal advice at the earliest opportunity to discuss the particulars of your matter.
Don’t swallow drugs in a panic!
Theoretically, if there is a likelihood that police may find drugs during a search, do not swallow all of the alleged drugs to ‘hide’ them! Your health is more important than that choice.
The charges that may come about from ‘drug possession’ are usually lesser penalties than ‘supply’ offences. Especially if a young person (aged between 10 and 18 years) is charged with an offence, they may elect to have the matter dealt with under the Young Offenders Act 1997, which usually has better outcomes. This includes a warning, caution, or referral, which avoids a criminal conviction for young people.
But again, it is best to seek legal advice for the particular circumstances of the situation.
Overall, there are different levels of seriousness for charges relating to drug offences. Usually, the amount found can affect the seriousness of the penalty.
A charge for possession carries a smaller penalty than a charge of supply, and circumstances that may affect the penalty can be decided by the magistrate.
This information is no substitute for legal advice.
For more info visit Legal Aid police powers fact sheet.
Barefoot Law’s email is [email protected] should you need legal representation or assistance.
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