Two men are spotted by police walking at night, not late, on a street in Burwood, in Sydney's inner west. The patrolling police think they look suspicious, so decide to stop and search them.

Observing that one of the men is sweating, nervous and has dilated pupils, the police officers suspect the two are carrying drugs. However, the men, who don't live in the area, tell the police they are waiting for a friend.

The police proceed to search the two men. They find no drugs, but discover mailbox keys that they allege are housebreaking implements. The two men are charged. But was this stop and search legal?

What are reasonable grounds for a stop and search?

When the case got to court, the magistrate watched the police body-worn vision and queried whether the police had conducted a lawful search. Her concern was that if the police had a suspicion, was it reasonable?

Under section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002, police can stop and search if they suspect - on reasonable grounds - that the person has in their possession something that was illegally obtained or could be used to commit an offence.

The question for the court was, what constituted reasonable grounds to stop and search these two men?

This same question was brought to light in another leading matter, where police had stopped and searched a man they suspected of possessing prohibited drugs after observing his behaviour.

The key principles that emerged from this matter were that a reasonable suspicion involves less than a reasonable belief, but more than a possibility, and there needs to be some factual basis for the suspicion. (See Azar v DPP [2014] NSWSC 132.)

Police prosecutor argues that search was legal

During the case, the police prosecutor raised several points in court to support the argument that the search was legal, including:

  • the officers were experienced and trained in proactive policing
  • the offenders appeared nervous and were sweating when stopped
  • one of the men's pupils were dilated
  • one of the men had two mobile phones
  • the time of night

Defence maintains there was no factual basis for suspicion

In their defence, the men argued that while police suspected the two men possessed drugs, none were found. The man with dilated pupils was on pain medication which affected his eyes and both men were co-operative and did not resist or run away. Also, rather than acting on any report or complaint from the public, the police were merely patrolling.

Most importantly, in his evidence, the police officer stated that where the men were walking was not considered a "hot spot" for crime.

Can police stop and search you for no reason?

In her ruling, the magistrate stated that it was evident in the video that the officer had already formed an intention to search the men. The manner of the officers was argumentative and officious, while in comparison, the men were co-operative and polite.

While the officer thought two men walking at that time of night in an area where they did not live was "suss", it was not enough for the court.

It ruled that the search was illegal.

Powers of police must be executed very carefully

According to section 138 of the Evidence Act 1995, evidence can be excluded if improperly or illegally obtained, unless it has some probative value, or the offence is so serious that the evidence has to be admitted (such as terrorism, imminent commission of serious crime, someone at risk).

The illegal police search that uncovered the mailbox keys led to one of the men being charged with possessing housebreaking implements. The keys were the main piece of evidence in the police case, and without them, they could not proceed.

The magistrate determined that the offence, while serious, was not at the highest level of seriousness and that the officer would have been aware of his responsibilities under the Law Enforcement (Powers and Responsibilities) Act. Her Honour noted that these are important powers that need to be executed properly, and on this occasion, this did not occur.

The court ruled the evidence of the search was inadmissible. The prosecution offered no further evidence and the matter was withdrawn and dismissed.

It's good to know that some magistrates are on to this.

Mark Warren
Criminal law
Stacks Collins Thompson

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