When Can Police Search You Without a Warrant in NSW?

Police can search a person without a warrant in certain circumstances. However, they must have a lawful basis for the search and comply with the safeguards applying to that power.

Being stopped by police does not automatically give an officer an unrestricted right to search you or your belongings.

Reasonable Suspicion and Police Searches

Under section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), commonly called LEPRA, police may stop, search and detain a person without a warrant where they suspect on reasonable grounds that the person possesses:

• Property that has been stolen or otherwise unlawfully obtained.
• Something used, or intended to be used, in connection with a relevant offence.
• A dangerous article being used, or previously used, in connection with a relevant offence.
• A prohibited drug or plant.

The legislation specifies the offences and circumstances covered. Other provisions create additional search powers, including powers concerning knives and dangerous implements.

The relevant test is reasonable suspicion, rather than proof that the person possesses an unlawful item. Whether the grounds were sufficient depends on the information available to police at the time.

Can Police Search You After Arrest?

Separate powers apply at or after arrest and while a person is in lawful custody.

For example, section 27 of LEPRA permits a search at or after arrest where police reasonably suspect the person is carrying something dangerous, something that could assist an escape, or an item connected with an offence.

This is distinct from the general search power applying to someone who has not been arrested. It is therefore important to identify the particular power police relied on.

What Should Police Tell You?

When exercising relevant search powers, police generally must provide their name and place of duty, explain the reason for the search and show identification if they are not in uniform, subject to the applicable statutory rules.

You can calmly ask:

• “Why am I being searched?”
• “What is your name and station?”
• “Are you asking for my consent, or exercising a legal power?”

If you do not agree to the search, you can state that you do not consent. However, withholding consent does not prevent a search where police have an independent lawful power.

Do not physically resist or obstruct police. The lawfulness of the search can be assessed afterwards with legal advice.

Are Strip Searches Subject to Different Rules?

Yes. A power to conduct an ordinary search does not automatically justify a strip search.

Strip searches have additional requirements concerning necessity, privacy and how the search is conducted. Outside a police station or other place of detention, police must also have reasonable grounds to suspect that the seriousness and urgency of the circumstances make the strip search necessary.

Additional protections apply to children and people with impaired intellectual functioning.

What if You Believe a Search Was Unlawful?

Record the circumstances as soon as practicable, including the reason police gave, the officers involved and any available witnesses. Preserve relevant documents, photographs or recordings.

Depending on the circumstances, legal options may include challenging the admission of evidence, making a complaint or seeking advice about another remedy. Evidence obtained unlawfully is not automatically excluded from court.

Speak with George Sten & Co Criminal Lawyers

If a police search has led to criminal charges, or you are concerned that police acted outside their powers, George Sten & Co can review the circumstances and explain your options.

Call (02) 9261 8640 to arrange an appointment. For urgent criminal law assistance, call 0412 423 569, available 24 hours.