It’s important to understand when the police have automatic right to search you so that you know when it is your right to refuse.
When the police can search you?
There are four situations in which a police officer is allowed to search you without your consent.
A police officer is entitled to search you if:
- They have a warrant
- They have arrested you
- You are in a public area that has been declared a ‘designated area’
- They have ‘reasonable grounds’
The may search you, your bags, and your car.
In these four situations you should comply with the search or you risk being charged with hindering police. Beyond these four situations, however, the police are only allowed to search you if you if you agree.
1. Search with a warrant
Obviously, a police officer with a valid warrant is allowed to search you. In this situation you should cooperate, call us immediately on 1300 616 813.
2. Search upon arrest
If you have been arrested the police have a right to search you. You should cooperate and call us immediately.
3. You are in a public area that has been declared a ‘designated area’
If you are within a “designated area” the police have an automatic right to search for weapons, regardless of whether they have any reason to think you have done anything wrong.
Before searching you they must give you written notice stating that:
- The area you are in has been declared a designated area;
- That you or your vehicle are in the designated area;
- That the police have the power to search you; and
- That it is an offence for you to prevent the police searching you.
You should ensure that you have a copy of and read the notice (keep it), cooperate with the search, and call us immediately if you have any concerns regarding the search or its outcome.
What is a ‘designated area’
The police can declare an are designated for up to 12 hours in three situations:.
- If there has been one more acts of violence or disorder with a weapon in the area during last 12 months and there is a likelihood that something similar will occur again.
- If there has been violence or disorder with a weapon at a previous event or celebration, this event is happening again in the area, and there is a likelihood that something similar will happen.
- It is likely that and act of violence or disorder will occur in the area and it is necessary to designate the area in order to prevent or discourage the violence or disorder.
In the first two situations the police are required to publicize that the public area has become a designated area.
4. Search on ‘reasonable grounds’
If the police have not arrested you, do not have a warrant, and you are not n a designated area the police may only search you in a public place if they reasonably suspect that you are carrying illegal drugs, volatile substances, graffiti implements (see below), firearms, or weapons generally.
The police can reasonably suspect you of such behaviour if you are in an area with a high rate of violent crime.
However, the police can only search you on suspicion of carrying graffiti implements if you are trespassing on someone property or are on or near public transport property, and they reasonably believe you are 14 years or older.
What to do if the police want to search you
If the police ask to, or insist on, searching you should ask why, even if they have a warrant. They must tell you why. You can ask them to explain this.
If the police officer does not have the right to search you without your consent you can refuse to be searched. Whether you refuse is a matter for you. We would usually advise that you refuse if possible.
If you agree to allow the search you should ensure that the police officer confirms your agreement in writing.
What type of search can the police perform?
If the police are entitled to search you they may perform a pat down or strip search. A strip search must be done in private. In either case, the police officer conducting the search must be of the same sex as you (unless this is not reasonably practicable).
The police are only allowed to conduct an internal search (inside your body) with your agreement or the court’s permission. In either case, the search must be conducted by a doctor of the same sex as you.
What will happen during the search?
Remain calm and polite. Try to have as many witnesses around you as possible and use a mobile phone to record the search if you can.
The police officer conducting the search must make a written record of the search. You should ask for a copy of this and keep it.
They must also give you a receipt of anything they take from you, including drugs. Insist on this and keep it. Do not countersign a receipt that is incorrect or not sufficiently detailed.
Under 18 or have a cognitive disability or a mental illness.
Except in urgent or serious circumstances the police must ensure that you have someone with you during the search if you are under 18 or have a cognitive disability or a mental illness.
In a designated area another police officer may be that someone if it is not
‘practicable’ for the police to have a more appropriate person present.
After the search…
If you are unhappy with the search or its outcome, or have been charged with an offence, call us immediately on 1300 616 183.
If we don’t answer call us again or send a text message with your name and number and we’ll call you back. We always have a lawyer on call 24/7 but he or she may be on another call or otherwise engaged. Be patient. Speaking to a lawyer is your right and can help avoid the situation becoming any worse.
We encourage our clients and their family and friends to save our number in their phone so that you can reach us whenever you need to. Our after hours numbers are 1300 616 183 and 0401 564 044.
For more information about your rights and the law click here to see our other fact sheets.