What Are Your Rights During A Drug Search In Sydney? Don’t Get Caught Unprepared

Being pulled aside or pulled over by Police and subjected to a search by NSW Police can be a scary and intimidating experience with serious consequences for you if you are found in possession of illegal drugs.

If Police catch you with illegal drugs on you then you may be charged with possession and/or drug supply offences and required to face court.

Understanding your Rights during a Drug Search

Police have broad powers pursuant to LEPRA that a Police Officer may without a warrant, stop, search and detain you and anything in your possession or under the control of you (For example a bag or your motor vehicle) if the Police Officer Suspects on ‘Reasonable Grounds’ that you may be in possession of a prohibited drug.

When can Police search without a warrant? (Reasonable Grounds)

Police do not need a search warrant to search you for illicit drugs if you consent OR if Police hold a ‘reasonable suspicion’ that you are in possession of illegal drugs/proceeds of crimes/items.

Reasonable suspicion is when a Police officer forms a suspicion that you may have drugs on you and that there are ‘reasonable grounds’ for making this assumption.

To hold a reasonable suspicion this suspicion must be more than a ‘mere possibility’ but can be less than a ‘reasonable belief’ according to the seminal case of R v Rondo [2010] NSWCCA 540.

Immediate steps to take during a drug search

If you consent to a search by Police, then you forfeit any opportunity to then later challenge the search as being an ‘illegal search’ which may not have had the requisite ‘reasonable suspicion’ required for Police to legally search you.

Therefore, it is critical that you announce on multiple occasions that you do not consent to the search being conducted by Police.

If Police do ask if you consent to a search, you must clearly and emphatically say that you ‘do not consent to the search.’

Police will likely have their body worn cameras switched on so it is imperative you can be heard saying things such as I ‘Do not consent to the search!’ and you can say things such as ‘This is an illegal search!’

Ultimately if Police want to search you cannot physically stop them from doing so, even if you don’t consent, but make sure you make it clear that you are not consenting so that the legality and validity of the search can then later be challenged at court, if you believe that the Police did not have the reasonable suspicion to search you in the first place.

Challenging an Illegal Search

Provided you have not consented to the search then your lawyers can then make an objection to any evidence of what may be found in your possession to be objected to because it may be an ‘Illegal Search.’

An objection is made at your court hearing following entering a plea of ‘Not Guilty’ and a challenge is made pursuant to s138 of the Evidence Act 1995 that the evidence before the court is ‘improperly’ or ‘illegally obtained.’

Legal Consequences and Why You Need a Drug Defence Lawyer

If the court is persuaded that the search conducted by Police is illegal and without ‘reasonable suspicion’ then the evidence may be excluded and the prosecution case may not be able to proceed.

One classic example of this was a case I ran for a young man who had just left his home and was seen to get into his motor vehicle and drive to the service station where he was followed by Police and then subjected to a search where a small amount of cannabis was located.

The young man challenged the search at the time saying he was not consenting to the search by Police.

I represented this young man and was successful in arguing that the evidence was illegally obtained via an ‘illegal search’ I was able to exclude the evidence of the search and the finding of the cannabis as there was no evidence before the court that the Police Officer had any grounds to hold a ‘reasonable belief’ that the young man was in possession of illegal drugs.

The case was dismissed, and the client was awarded costs against the prosecution (Link below).

This example highlights why it’s so important to make sure you can be heard objecting to a Police search and get a good drug Drug Charge.

Man found with drugs was subject to illegal ‘racially profiled’ search