Australia: Can police search my car?

Just as police cannot randomly enter your home, police also cannot search your vehicle without lawful authority.

If police have lawfully obtained a search warrant, then they are permitted to search your car.

But what if police randomly stop your car whilst you are driving? Can they search your car?

The answer is no, unless they have reasonable grounds to carry out a search.

LEPRA

Section 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") sets out the powers of police to search vehicles without a warrant.

Section 36(1) of LEPRA allows a police officer to search a vehicle if he suspects on reasonable grounds that a specified circumstance exists. Those circumstances are:

• The vehicle contains or a person in the vehicle possesses stolen or otherwise unlawfully obtained goods.
• The vehicle is, was or may have been used in committing specified criminal offences.
• The vehicle contains anything used, or intended to be used, in or in connection with committing a relevant criminal offence.
• The vehicle is in a public place or school and contains a dangerous article that is, was or may have been used in or in connection with the commission of a relevant criminal offence.
• The vehicle contains, or a person in the vehicle possesses prohibited plants or drugs in contravention of the Drug Misuse and Trafficking Act.
• Circumstances exist on or near a public place or school that are likely to give rise to a serious risk to public safety; and a search may lessen the risk.

A separate limited power is given to police under section 36(2) of LEPRA relating to searching a class of vehicles.

What is "reasonable suspicion"?

In R v Rondo [2001] NSWCCA 540, the NSW Court of Criminal Appeal considered the phrase "reasonable suspicion".

The facts that triggered criminal charges against Mr Rondo were as follows:

1. Rondo was driving a sports car with panel damage to the driver's side.
2. Police drove alongside the car and said to Rondo, "Is this your car?" Rondo said, "No."
3. Police say that they observed Rondo lean across to the passenger side of the vehicle and place something in the glovebox.

Upon searching the vehicle, police found $860 in cash in the console and some cannabis leaf in the glovebox.

"Reasonable suspicion" was explained in the seminal judgement of Spigelman CJ in Rondo as follows [at 53]:

"(i) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 357E (the predecessor to s 36 of LEPRA). A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.

(ii) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.

(iii) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances."

Finding that the search was illegal, the appellate court in Rondo ruled that:

• Police did not have reasonable grounds to form any of the suspicions mentioned in s.357E.
• It was not open to police to "reasonably suspect" any of the matters referred to in s.357E.
• Hence the stopping of Rondo and his vehicle was unlawful.

Random breath tests

Police have a different power to stop a motor vehicle without a warrant for the purposes of undertaking a random breath test. This power is found in section 3 of Schedule 3 the Road Transport Act ("RTA").

Under section 3(1), a police officer may require a person to submit to a breath test if the officer reasonably believes that:

(a) the person is or was driving a motor vehicle on a road,

(b) the person is, or was, occupying the driving seat of a motor vehicle on a road and attempting to put the motor vehicle in motion, or

(c) the person is or was occupying the seat in a motor vehicle next to a learner driver while the driver is, or was, driving the vehicle on a road.

It is a criminal offence to refuse to undergo a breath test.

Can police use a random breath test to justify searching your car?

The answer is no.

In R v Buddee [2016] NSWDC 422, the NSW District Court, sitting in its criminal law jusisdiction, dealt with the case of a driver who was stopped by police for a random breath test ("RBT") and whose car was then searched.

The breath test was negative and the driver produced to the police a valid driver's licence.

After observing a number of large photo frames containing memorabilia from the movie Scarface, the police officer asked the driver who owned the photo frames.

"Me I bought them, they are mine. I love the movie," responded the driver.

There was also an "ice pipe" next to the driver's seat.

Following a search of the vehicle, a small mints tin was found which contained 6.76 grams of methylamphetamine at an approximate purity of 80 per cent. The driver charged with the criminal offence of supplying a prohibited drug based on the drugs found in the car.

Judge McClintock SC excluded the evidence, finding that the search was illegal and improper.

In his judgement, his honour made the following pertinent observations:

• Police do not have the power to arrest for questioning or facilitating an investigation.
• The general right to liberty includes the right to personal freedom of movement.
• The purpose of conferring the random breath test power is the maintenance of road safety and the licensing system.
• It is clear that Parliament intended to distinguish motor traffic powers from criminal investigation powers.
• The random nature of the motor traffic powers is a very significant interference in the liberties of citizens lawfully going about their business. They are not part of the criminal investigation powers conferred by LEPRA.
• RBT powers cannot be used to justify the arbitrary stopping of vehicles, interrogating of occupants or searching of vehicles for crime detection.
• There was no power to detain the driver once she had produced her licence. She was free to go and ought not to have been further detained.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.