The term “reasonable suspicion” refers to the fact that police officers in Australia cannot search individuals prior to arresting them unless an officer has reason to think that the suspect is in violation of the law.
This also holds true for searching a vehicle; without the reasonable suspicion that the vehicle contains illegal items, it cannot lawfully be searched by the police.
Even if police officers suspect wrongdoing, there are limits to their search activities under the law.
When conducting any search, the police must be able to prove that they had a valid and reliable source for their information. Without such a source, which can include personal observation on the part of law enforcement personnel, the police cannot stop and search people or their property.
It is often left up to the courts to determine whether or not the police had reasonable grounds for conducting a search.
If the police search a person, home, vehicle or other place without having adequate evidence to prove that they had good reason to suspect that they may find evidence of illegal activity, any evidence obtained as the result of such a search is not legal and cannot be used in court.
This means that a person who is found to be in possession of drugs or stolen property may not be convicted because the judge will not allow the evidence to be presented at a trial. This is why it is very important for law enforcement personnel as well as people who believe that they might be victims of an illegal search to understand just what reasonable suspicion is.
The following examples of reasonable suspicion help to illustrate what is and is not acceptable.
The presence of a person in a suspicious location, such as an area known for drug trafficking, is not alone reasonable grounds for proving a connection between the person and drug activity on the part of the police.
This is true even if the person behaves suspiciously, such as frequently looking over his shoulder or walking very unsteadily.
However, if the person is discovered in an area known for drug use and trafficking and has physical signs of drug use, such as being unsteady on your feet or dilated pupils, the signs may be adequate for the police to have reasonable suspicion of illegal drug use.
A person who is unsteady, unfocused, or who otherwise appears to be under the influence of some type of drug may arouse suspicion of illegal drug use in those who see him, but these signs alone do not rise to the level of creating reasonable suspicion.
It is possible that the person is under the influence of alcohol or a legal drug that has been prescribed to him; he may not be searched unless there are additional factors that raise the level of doubt to provide the police with reasonable grounds for a search.
If the police can prove that they had reason to suspect the person’s behaviour was due to illegal drug use, such as having seen the person ingest something or hide drug paraphernalia, then there are reasonable grounds to consider wrongdoing and a search may be conducted.
NSW Law’s do not allow the police to conduct a search of a person or his vehicle based on past convictions or the police officer’s prior knowledge.
An example of this type of search is when a person is stopped for a traffic violation or for a random alcohol breath test.
While the person may be known to the police as a drug user based on previous convictions or other interactions, and the person may be acting very nervous, these things alone do not constitute reasonable suspicion.
The police also cannot search a person who is simply in the company of known drug users. The police must see evidence of drug use or have credible information that the person to be searched is in possession of drugs.
Otherwise, there are no reasonable grounds for searching the person or his vehicle.
The police are not always required to have a reasonable suspicion to search for weapons.
In parts of Australia the police may use a metal detector to check for weapons when people are leaving or entering licensed premises, declared public places, or car parks used by and for patrons of such places.
If the metal detector indicates the possible presence of a weapon, the police can require the person to produce the item. If the person doesn’t do so, the police may then consider that they have adequate grounds to search the person and his property as they seek a possible weapon.
In situations other than those described above, law enforcement officers must still have a reasonable grounds for suspecting that a person is armed before they are allowed to search him.
Random weapons searches are not allowed and the police must have a provable belief in credible information that a person is illegally armed before they may conduct a search.
Lacking such information, a search is in violation of a person’s rights and may not be conducted.
The exception to this is when a person is temporarily detained by the police; the police may conduct a brief body search of detained persons to ensure the officer’s safety.
As with other instances of search, the police are only allowed to search a person’s vehicle if they have a reasonable suspicion that the person has illegal or otherwise controlled items in his car.
Typically this would include drugs, weapons, or stolen items.
It’s not enough for the police to have an idea that the person might be involved in illegal activities; they must have a clear and reliable indication that the person has something illegal in his vehicle.
This might be information obtained through acceptable channels, but could also be from the officer seeing something that was left in plain view when he was conducting routine business, such as issuing a traffic ticket.
If they have grounds to suspect illegal activity, the police can temporarily detain the driver and any passengers, search them for weapons and contraband, and search the vehicle.
The law allows police to use sniffer dogs to identify people that might be carrying illegal drugs; random searches using dogs are allowed and reasonable suspicion is not required.
Such searches are limited to certain public locations including airports, bus and train stations, concert venues, festivals, and sporting events.
The dog must be kept under control at all times and must not touch the person being searched more than is necessary to conduct the search.
If a sniffer dog indicates the presence of drugs on a person, it constitutes a reliable source of information and the police may then conduct a more thorough search of the person and the area under his immediate control.
The preceding examples of reasonable suspicion cover some of the more common situations where this level of suspicion is required, as well as providing some instances of where it is not. The law requiring police to have a reasonable suspicion of illegal activity before conducting a search is intended to protect the citizens of Australia from illegal and invasive searches conducted randomly or for insufficient reasons.
Police officers should always be certain to carefully follow the search laws and be able to prove the foundations of their claim before conducting a search. Citizens who feel that they have been searched illegally should contact a criminal defence lawyer for help in filing a complaint against the police; if a criminal matter is pending then the citizen may also ask the judge to disregard any evidence that was obtained through an illegal search.
Only by adhering to the laws regarding the search and seizure of property can the rights of citizens be maintained.
Balance between the rights of citizens and the power of the police is essential for a free and civilized society, and one aspect of this balance is the requirement that the police have a genuine reason to look before conducting a search of a person or place.