IS THE SEARCH VALID?
There is no common law right that allows police to search individuals prior to arrest. The power available to police to perform pre-arrest searches is found in s 21 Law Enforcement (Powers and Responsibilities) Act 2002 NSW.
That power is enlivened where a police officer “suspects on reasonable grounds” that one of the things in section 21(1)(a)-(d) is true, such as that the suspect possesses stolen property.
It is critical when thinking about a search scenario that you follow this layout:
(a) What has the police officer done? Has a search actually been performed?
(b) What provisions exist that might support that action?
(c) What do those provisions require a reasonable suspicion of?
For example, to search a vehicle you have a list in s 36(1)(a)-(f). For search of a person you have a different list in s 21(1)(a)-(d). So its not just suspecting of committing a crime of any kind – there is a limited number of things for each instance and a police officer must suspect one of them.
(d) Did the police officer in fact hold the suspicion?
The case of Dowse shows us that where a police officer says they suspected someone had drugs on them, evidence can be led to suggest they didn’t hold that suspicion. For example, where the the police chase someone but when they eventually apprehended him, do not question him about any possible use of drugs, let alone present possession of drugs, that would indicate that they never held that suspicion. It was an invention invented after the fact to validate the search. That is invalid.
(e) Was it a suspicion?
This quote from Queensland Bacon Pty Ltd v Rees is helpful:
“In the first place, the precise force of the word “suspect” needs to be noticed. A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to “a slight opinion, but without sufficient evidence”, as Chambers’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.”
(f) Was the suspicion reasonable?
A suspicion will be a reasonable suspicion if (R v Rondo):
(i) It involves less than a reasonable belief but more than a possibility
You need some facts or observations that would create in the mind of a reasonable person an “apprehension” or “fear” of one of the state of affairs that the officer must suspect (stolen goods, committing an offence, etc). This is more than a reason to “consider” or “look into” the possibility of its existence.
So, a reasonable person in the position of the police must be able to generate that suspicion.
(ii) It has a factual basis
You need some observable, objective thing that led to the suspicion. Usually this would be the police officer’s own observations of what the suspect was doing.
(iii) The information and the suspicion were in the officers mind at the time of the search
In determining whether the police officer had good information based upon which he made the suspicion regard must be had to the source of the information and its contents in the light of the whole of the circumstance.
In Dowse v New South Wales, it was held that where a person yells at police and entices them to chase them, that would not on its own make a reasonable person suspect that the person might have drugs or drug paraphernalia on him, where it is obvious from other facts that he was intoxicated. Using this case as an analogy for a very basic example, if someone stumbles out of a bar, vomits in a bin, then punches a car, there is no reasonable apprehension that he is under the influence of drugs – a reasonable apprehension would be that he is under the effects of alcohol.
In R v Fortescue, Michael  NSWDC 272 (15 March 2010), a police officer had been alerted to the presence of two people in a laneway more dimly lit than surrounding areas, in the vicinity of a Nightclub which had a reputation among police as a well known establishment for drug users, where one person had dilated pupils, white paste in the corners of the mouth, a trembling leg and a clenched jaw, all at around 2:15am.The officer gave evidence that the suspicion he held was of possession of drugs.The Court held that “while the nightclub’s reputation may have been tainted by some association with drugs that would be insufficient to select customers at random for search. Nor was the fact that the two men made their way down a laneway less brilliantly lit than the front of the club. Nor was the fact that both men looked over shoulders as they walked down the laneway at 2am. In a metropolis such as Sydney where street crime is not unknown it may have been prudent to do so. That the two men were pointed out as being of interest for a particular reason by another police officer, could not supply reasonable grounds for suspicion. That both men sat and had a cigarette is not a fact that can be taken as encouragement to form suspicion. Nor do all of these facts taken together supply enough to entitle police to stop, search or detain”.However, the Court considered that the physical symptoms observed, while capable of existing without drug use, could be “put into the context created by time, location and circumstance as giving to the symptoms… additional force”. The Court considered that “It is sufficient if the officer, viewing the symptoms with others, has reasonable grounds for suspecting possession of a prohibited drug by the accused”. The officer did not have tio have in mind anything more than what was required – he didn’t have to suspect a particular type of drug or what was to be done with it. All he needed to suspect was possession. The Court held that “the information before the police officer afforded reasonable grounds for the suspicion he formed”.
IS THE PROTECTION ADEQUATE?
The police need to establish that they had a good source of reliable information to make a reasonable suspicion to stop and search citizens. It appears that the “reasonableness” requirement is allowing Courts to read down the terms of the power to protect principles of personal privacy, dignity and modesty. This accords with the principle that courts will construe statutes, where a choice is available, “so as to minimise their impact upon common law rights and freedoms”: South Australia v Totani (2010) 242 CLR 1; 85 ALJR 19; 201 A Crim R 11.