At Faraj Defence Lawyers, we are persistent in our commitment to not only defending you inside a courtroom, but also protecting your rights and dignity when confronted by police. One practice that often raises questions and concerns is the ‘strip search’.

WHAT IS A STRIP SEARCH?

A strip search is a search method used by law enforcement and other authorities whereby an individual is required to remove some, or all of their clothing to allow a visual inspection of the body and garments.

A strip search is defined under section 3 ‘definitions’, of the Law Enforcement (Power and Responsibilities) Act 2002 (NSW) as the,

‘Search of a person or articles in the possession of a person that may include;

(a) requiring the person to remove all of his or her clothes and,

(b) an examination of the person’s body (but not the person's body cavities) and of those clothes.

The nature of a strip search can seem very confrontational and invasive, often leading individuals to feeling vulnerable and distressed which is why it is crucial in knowing your rights when it comes to being searched in this manner.

While these are usually conducted in a controlled environment, respecting one's privacy and dignity, there are times where police conduct may fall short of these standards, between July 2020 and May 2022, nothing illegal was found in almost 60% of searches conducted by Police during that period.

It is difficult to know whether law enforcement has exceeded their powers during a strip search, which is why we're here to help. At Faraj Defence Lawyers, we find these statistics alarming and understand the importance of having your privacy respected.

We are dedicated to protecting your rights, seeking accountability for any misconduct and ensuring that principles of justice and dignity are upheld.

WHEN CAN POLICE CONDUCT A STRIP SEARCH?

Law Enforcement (Power and Responsibilities) Act 2002 (NSW) (LEPRA) is the main legislative body which has provisions on police authority and conduct. Section 21 of LEPRA states, ‘a police officer, may, without a warrant, stop, search, and detain a person’, this means the police have the right to search you on reasonable grounds if they believe you are in possession of;

• Anything stolen or otherwise unlawfully obtained,

• Anything used or intended to be used in or in connection with the commission of a relevant offence,

• Any dangerous article in a public place that is being or was used in or in connection with the commission of a relevant offence,

• Any contravention of the Drug Misuse and Trafficking Act 1985 (NSW), a prohibited plant or drug.

Further, section 31 of LEPRA delves deeper into the authority accorded to the police concerning strip searches, this section gives authority to conduct a strip search on an individual.

However, this section highlights that not only must there be reasonable grounds for the above reasons, to conduct a strip search but there also must be an element of ‘seriousness and urgency of circumstances which make the strip search necessary’ present.

WHERE CAN POLICE CONDUCT A STRIP SEARCH?

Understanding the specific locations where police can conduct a strip search is crucial for ensuring the legality and appropriateness of such procedures. According to Section 33, LEPRA, there are distinct protocols regarding the acceptable locations for conducting a strip search.

Primarily, a strip search should ideally be conducted in a police station, however this is not always the case. Sometimes a strip search must be conducted outside a station, however under certain circumstances. This includes:

• The search must be conducted in a private area

• The search must not be executed in the presence or view of a person of the opposite sex

• The search should exclude the presence of view of any person whose attendance is not necessary for the purposes of the search

It is also a requirement that strip searches should not be carried out in a police van, they must be conducted in a secure location with the appropriate facilities, making sure your principles of privacy, respect and necessity are upheld.

DEFINITION OF KEY TERMS:

WHAT IS REASONABLE SUSPICION?

Reasonable suspicion is a fundamental legal concept that serves as the foundation upon which police can execute certain actions, such as conducting a strip search. Law enforcement must use ‘reasonable suspicion’ in order to perform a strip search, this is so that the police actions are justified and not arbitrary.

Reasonable suspicion cannot be derived from a ‘gut feeling’, rather there must be some form of factual basis suggesting an appropriate reason to search you.

Given the invasive nature of a strip search, the law mandates that police must have reasonable and fact-based belief that the search is necessary.

If you're showing signs or behaviours that are commonly associated with criminal activity such as nervousness, evasive answers or presence of drug related symptoms then the basis required for reasonable suspicion may be established.

WHAT DOES SERIOUSNESS AND URGENCY MEAN?

In order to carry out a strip search the element of ‘seriousness’ and ‘urgency’ must be present. The existing legislation does not explicitly define these terms, which can make it challenging to know whether a strip search has been conducted with legal justification.

An example when circumstances may be serious or urgent enough is if police believe you are carrying a concealed weapon with an immediate threat to public safety, both the seriousness of the potential harm and the urgency of the situation may warrant such a search. The seriousness and urgency elements are critical considerations law enforcement must assess before conducting this time of search.

WHAT ARE YOUR RIGHTS WHEN STRIP SEARCHED?

When subjected to a strip search, it is crucial to be aware of your rights to safeguard your personal dignity and to ensure fair treatment. Being well-informed about your rights allows you to navigate the situation with confidence, protecting your interests and maintaining your autonomy during interactions with law enforcement.

TO EXERCISE YOUR RIGHT TO SILENCE

When approached or questioned by police, one fundamental right you have is the right to remain silent. This is your legal protection, allowing oneself to avoid self-incrimination and maintain control over the information one may share.

Understanding and asserting the right to silence is essential, particularly during police questioning, as it can significantly impact the outcome of any legal proceedings that may follow. Do not confuse this with non-cooperation, police may try to use their tactics to get you to talk, all you need to do is reply with “no comment” to all questioning, with exception to providing your name, address and date of birth and call your lawyer.

Section 89 of the Evidence Act 1995 (Cth), prohibits the court from considering your refusal to answer questioning as an unfavourable factor related to your case, the Judge must not view it as something ‘suspicious’.

Failing to assert your right to silence when appropriate can potentially lead to unintended legal consequences, as any statements made can be used against you in court, possibly leading to a negative outcome for your case.

TO REFUSE/NOT CONSENT TO THE STRIP SEARCH

Understanding the circumstances under which an individual can refuse a strip search is paramount, especially when there’s a suspicion of police acting beyond their power or outside the bounds of the law. In such scenarios, it is within a person's rights to refuse to consent to a strip search.

Clearly articulating this refusal to the police is a critical first step in exercising this right. If you believe that elements of ‘reasonable suspicion’ and ‘seriousness and urgency’ are not present, you can refuse to be strip searched, make sure to clearly verbalise non-consent and document any witnesses present.

It is important to note that while asserting one’s rights is crucial, there are scenarios where refusing a strip search could be perceived as hindering police in their duties. Section 60 (1AA) of the Crimes Act 1900 (NSW) states;

‘A person who hinders or resists, or incites another person to hinder or resist, a police officer in the execution of the officer’s duty commits an offence’.

Essentially this means that refusing to cooperate with police can result in committing an offence, in regards to strip searches, if the search meets its proper requirements, then your consent may not be relevant.

WHAT IF I'M UNDER THE AGE OF 18 YEARS OLD?

For individuals under the age of 18, specific rights and procedures are established to ensure their protection during strip searches. According to section 33 of LEPRA, a child between the ages of 10 and 18 must have a strip search conducted in the presence of a parent, guardian, or other appropriate adult, serving as a support person.

It is also important to note that police are prohibited under section 34 of LEPRA to conduct any strip searches on children under the age of 10, regardless if there is reasonable suspicion or seriousness and urgency present.

For a strip search to be legally conducted on a minor, several criteria must be met. These include

• establishing reasonable grounds for the search

• ensuring the presence of an appropriate adult

• confirming the search’s urgency and seriousness

Moreover, the minor has the right to opt out, which means they have the option to decline the presence of a support person under certain circumstances. These rights and procedures are designed specifically to protect individuals under the age of 18 years old during strip searches.

IS A SNIFFER DOG SITTING NEXT TO ME ENOUGH GROUNDS FOR A STRIP SEARCH?

A common question is whether the mere presence of a sniffer dog sitting next to an individual is sufficient grounds for a strip search? The answer is not simple, there are many circumstances surrounding the encounter which may determine whether the strip search is justified.

Sniffer dogs are common at places such as music festivals, raves, airports and other public areas, they mainly detect things like prohibited drugs. A study conducted by the NSW Ombudsman revealed that the precision of sniffer dogs in accurately detecting individuals in possession of illegal substances is approximately 25%.

Despite this relatively low precision rate, police still continue to rely heavily on these dogs when trying to establish reasonable grounds to search somebody.

While a sniffer dog sitting next to someone may contribute to the grounds for conducting a strip search, it is not sufficient alone. Police must consider the broader context, assess the behaviour of the individual, and weigh any additional evidence available to determine whether a strip search is justified and necessary.

NSW POLICE POWERS AND LIMITATIONS REGARDING STRIP SEARCHES

In New South Wales, police are vested with specific powers and limitations to conduct strip searches under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). While officers have the authority to carry out these searches, they are bound by strict limitations and requirements to ensure individuals' rights and dignity are protected.

VISUAL INSPECTION REQUIREMENTS

When conducting a visual inspection, the essential components of this search are outlined in section 32 of LEPRA. During a strip search, police officers are not permitted to touch the individual's body or reach into any body cavities. The search is strictly visual, and any deviation from can constitutes a violation from the law enforcements end.

PROHIBITED TYPES OF STRIP SEARCHES

It is important to be aware of the types of practices that are explicitly prohibited during such a procedure. Section 32 of LEPRA, provides several constraints to safeguard an individual’s rights and dignity. The key prohibitions include:

• Any questioning by police officers during the conduct of a strip search

• Being searched by police officers of opposite sex

• Unnecessary removal of more clothes than person conducting believes on reasonable grounds to be reasonably necessary

UNLAWFUL SEARCHES

An unlawful search is one that violates the stipulated protocols and guidelines, infringing on an individual’s rights. When a police officer conducts an illegal strip search, it can lead to serious consequences both for the officer involved and the legal process to come.

Evidence acquired during such a search may be deemed inadmissible in court, potentially leading to the dismissal of the case or a lesser punishment. It may provide grounds for a civil claim, allowing the individual subjected to the search to seek redress.

For those subjected to a strip search, it is crucial to take detailed notes of the entire process. This includes noting the names of the police officers involved, what was communicated during the search, any areas of the body touched, and whether body cameras were in use. Keeping a meticulous record can be pivotal in challenging the legality of the search and preserving one’s rights.

WHAT ARE MY OPTIONS IF I’VE BEEN UNLAWFULLY STRIP SEARCHED?

If you believe you have been unlawfully strip searched, it is essential to know your rights and the avenues available for recourse. The trauma and indignity stemming from an illegal search can be distressing, but there are specific steps you can take to seek justice and potentially secure compensation.

Lodging a Complaint:

The first step often involves filing a complaint directly with the police station where the incident occurred. This provides the police department with an opportunity to address the situation internally.

Law Enforcement Conduct Commission (LECC):

If you're unsatisfied with the response from the police department or if you prefer an independent investigation, you can lodge a complaint with the LECC. They are responsible for overseeing and ensuring the integrity of law enforcement agencies in NSW.

Pursuing a Tort Claim or Civil Action

If you have suffered harm or trauma as a result of an unlawful strip search, you might consider pursuing a ‘tort claim’, this could result in financial compensation for damages.

Our team at Faraj Defence Lawyers specialise in defending and upholding the rights of victims seeking help from law enforcement misusing their powers.

Our expertise lies in advocating for and protecting individuals who seek redress from such injustices, with countless cases dedicated to challenging law enforcement we have consistently secured favourable resolutions and best outcomes for our clients.

If you or someone you know has experienced an unlawful strip search, call us immediately and book your free consultation.  

WHAT IF I'M CAUGHT WITH DRUGS?

If you find yourself in a situation where you are indeed caught with drugs following a strip search, it's essential to understand the immediate steps to take to protect your rights and potentially mitigate the outcomes.

Stay Calm and Compliant:

Reacting aggressively or erratically can worsen the situation. It's essential to remain composed and cooperate with law enforcement, even if you feel that the search or subsequent findings might be unjust.

Exercise Your Right to Silence:

While it's important to be cooperative, it's equally crucial to be cautious about what you say. Anything you disclose can and likely will be used against you in court. Politely but firmly state that you wish to remain silent until you have consulted with an attorney.

Call a Lawyer Immediately:

If you are detained or taken into custody, exercise your right to legal representation. Contacting a lawyer should be among your first actions. A lawyer will provide guidance on how to navigate the situation, ensuring your rights are upheld throughout the process.

Being caught with drugs during a strip search can lead to a range of charges, but with a good lawyer you can get these charges dismissed or leave the courtroom criminal record free. The most common charges include;

- Drug possession, this is when police find a small quantity of prohibited drugs on you, usually for personal or recreational use.

- Deemed supply, this is when police find you with a quantity of drugs that exceeds the legally defined threshold for personal use, essentially police are assuming that due to the amount you hold, they are most likely being used to supply and distribute.

- Drug supply, this is when police find the drugs on you and other evidence suggesting that you are/were involved in the selling, distributing, or otherwise providing illegal drugs to others. It is an indictable offence, meaning a more serious offence, in comparison to a drug possession charge as it implies a level of commercial intent.

How Faraj Defence Lawyers Can help

If you or someone you know has been caught with illicit drugs during a strip search or believe you have been unlawfully strip searched, contact Faraj Defence Lawyers and receive expert advice from one of our specialised lawyers today. We will provide guidance and support throughout; you are not alone.

Book your free initial consultation today by calling (02) 8896 6034 or emailing us at af@farajdefencelawyers.com.au

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