With the easing of COVID-19 restrictions coinciding with the oncoming summer and music festival season, encounters between members of the public and NSW Police increase. One contentious interaction with the public and NSW Police will be a result of the drug dog detection or 'sniffer dog' program. Sniffer dogs are still widely used by NSW Police in licenced venues and festivals despite widespread calls for the program to be abolished.
Whilst in force it's important to know what your rights and how to behave if a dog gives a 'positive indication' that you may be in possession of illegal drugs. Here are some helpful tips:
Be polite and respectful
This is not literally a legal requirement however adopting a polite and respectful manner towards police not only keeps things calm but could serve you in the following ways:
- You won't fail the police 'attitude test'. Many drug offenses allow for wide powers of Police discretion such as issuing an infringement as opposed to a Court Attendance Notice. It is important to note you can remain polite and respectful without offering admissions or consent. See below.
- You will also avoid the possibility of Police charging additional offenses such as offensive conduct or resisting arrest.
Peacefully refuse consent, while allowing it to occur
You or a legal representative on your behalf, may wish to challenge the legality of the search at a later date, and without your consent the police will need to prove that they had the necessary 'reasonable suspicion' before searching you. Ask if you are legally required to allow them to search you, and then ask that they note that you have not given your consent to do so.
The search will still go ahead, but the legality of any evidence found may later be challenged and deemed inadmissible if established police have inappropriately used the powers given to them in Law Enforcement (Powers and Responsibilities Act) 2002.
Police do not have a general power to detain you if nothing is found
As a general rule, when in doubt you might ask 'am I being detained?'. If the answer is no, then you may go. If it is yes, then you may ask 'on what grounds am I being detained?', and the officer must establish some legal ground preventing you form leaving.
You don't have to give your personal details if nothing is found
Unless the police have another legal reason compelling you to provide your personal details, there is nothing which requires you to give personal information to Police before or after a search if nothing is found on you. Giving your personal information to the Police at this time will create a permanent record on the COPS system and can be used to justify future searches.
If you have been stopped and searched by Police and would like to discuss the incident with a lawyer feel free to speak to one of our criminal lawyers during our free initial consultation. We operate 24/7 days a week and our team is led by a former police officer and police prosecutor.
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.