Search and Seizure - Drugs Flashcards
What sections of the Search and Surveillance Act 2012 relate to Drug searches?
S20 - Warrantless Search, Place & Vehicle
MODA S21 Warrantless Search - People in Place & Vehicle
S22 Warrantless Search - People
S124 internal Search prohibited
What are the requirements of a warrantless search under each provision s20, 21, 22?
RGTB Controlled Drug (as per Schedules)
in Place & Veh (s20)
People in P & V (s21)
Person (s22)
RGTS Offence against MODA committed
RGTB Delay will lose evidence. (not for s22)
What controlled drugs are relevant in S&S 20 - 23 (schedules)
i) Schedule 1 (class A)
ii) Part 1 of Schedule 2 (Class B, morphine, MDMA, Can Preps)
iii) Part 1 Schedule 3 (Class C)
iv) Part 3 of Schedule 4 (Precursors)
What is an internal search
Internal exam via device (x-ray, MRI etc) or Manual or visual exam via any body orifice.
What is not an internal search?
Visual inspection of
mouth
nose
ears
(whether aided by torch)
which does not cause entry to the orifice.
When can an internal search be required?
Who can conduct it?
- S 23 MODA
- Under arrest for some MODA offences
- Have RGTB certain property secreted in body
Can only be conducted by Registered Medical Practitioner
Is an unreasonable search always unlawful?
No - Not always (R v Merrit 2006)
unreasonable to believe package would be at Merrit’s address 5 days after delivery. Held unreasonable but exclusion of evidence disproportionate to breach of right, appeal dismissed
A. What two elements does RGTB require?
B. What reasonable grounds to SUSPECT are involved?
A 1: RGTB belief a controlled drug specified on the parts of Schedules is in a place or in possession of a person.
- RGTBelieve immediate entry necessary to avoid evidential material being destroyed, conceled, altered, damaged (S20 only)
B That a MODA offence is or about to be committed in respect of that controlled drug
Does drugged appearance of a person known as a drug user amount to RGTB for search?
No (Collins v Police 2007). Insufficient alone. Grey complexion, fidgety, nervous demeanour on its own not enough. Could be that of an anxious person
What was found in R v T Case regards internal search?
Appellant seen during search to be concealing something in her mouth. Restrained and instructed to spit out the object. Court noted The purpose of the section is to prevent invasion of the body…
The act does not prohibit what can be seen by normal observation of the face. Restraining the appellant to prevent her swallowing had not amounted to an internal search.
Detail R v Roulston decision, Internal search and Bill of Rights cruel and degrading treatment
Appellant strip searched, drugs found. Appellant picked up and placed in mouth. Force applied to face and throat to eject package.
Held: No internal Search (no insertion into mouth).
Search reasonable - no excessive force used, and S41 Crimes Act held as reasonable reason to prevent swallowing of the package.
Sneller v police: What were the circumstances?
Drug Search: Sneller was charged with “Obstruction” for refusing to spit out an item. Police used force “lengthy struggle” eventually using spray to cause Sneller to spit the item out.
Held: No specific power for police to force appellant to open mouth, spit out item. Passive resistance to spitting out the item not obstruction.
Hoete v R: Reasonable Grounds for Belief
Prior drug convictions and observations of 1C behaviour at service station. Multiple factors for RGTB. memory card and meth located in car. memory card uncovered drug manufacture at H’s home.
Held no reasonable basis to seized memory card but admissable probative value outweighed propriety.
Hill v AG. Reasonable grounds for belief
RGTB controlled drug in schedules. Officer didn’t turn mind to the exact drug he was searching for only that it was a white powder.
Officers don’t need to know exact drug, only reasonable grounds for believing that it is involved. Need to keep up to date with packaging and distribution methods etc
