Searches Flashcards
SECTION KNOWLEDGE TEST:
List all of the search-related sections of LEPRA we have covered and identify what each section relates to
- s20: defines what a ‘relevant offence’ is for the purposes of s21
- s21: power to search, seize and detain things without warrant (most common search power)
- s21A: ancillary power to s21. Can require person to open mouth, shake hair.
- s23: power to search persons for dangerous implements in public places and schools
- s27: power to search on arrest
- s28: ancillary power to s27. Can require person to open mouth, shake hair.
- s28A: power to search a person in lawful custody after arrest
- s30: defines what does and doesn’t constitute a person search
- s31: criteria for conducting a strip search
- s32: rules when conducting any search to preserve privacy/dignity
- s33: extra rules for conducting strip searches
- s34: prohibition on strip searchin children under 10
- s34A: searches may be conducted if consent given
- s36: power to search vehicles and seize things without warrant
- s36A: power to stop a vehicle if the officer has reasonable grounds to arrest, detain or search the driver or a passenger
What is the search power provided by LEPRA s21 and when can it be used?
Power:
- to stop, search and detain a person and anything in their possession or control
- to seize and detain anything found in the search that meets the below criteria
Criteria for use:
The officer must suspect on reasonable grounds that the person has in their possession or control:
- (Stolen) anything stolen or unlawfully obtained
- (Offence) anything used or intended for use in connection with the commission of a relevant offence
- (Dangerous article) in a public place a dangerous article that is being or was used in connection with a relevant offence
- (Drugs) a prohibited plant or drug
What is a ‘relevant offence’ for the purposes of justifying a search under s21 or s36 of LEPRA?
A relevant offence means:
- any indictable offence, OR
- offences under specific sections of the Crimes Act 1900, Weapons Prohibition Act 1988, Firearms Act 1996, and Explosives Act 2003**
** basically these offences are all for possessing different types of ‘dangerous article’ (firearms, specialised knives (e.g. butterfly knife), spear guns, irritating/harmful chemicals, or explosives)
What is the difference between a ‘dangerous article’ and a ‘dangerous implement’?
Dangerous articles are higher-end weapons. They include
- firearms
- prohibited weapons (e.g. butterfly knife)
- spear guns
- any irritating/harmful chemicals
- explosives
Dangerous implements include dangerous articles, but also a range of lower-end weapons such as:
- regular knives
- implements made or adapted to cause injury (e.g. bat with nails)
- anything in a person’s custody intended to menace or damage property (e.g. a punisher mask)
- a laser pointer
What is the search power provided by LEPRA s23 and when can it be used?
Power:
- stop, search and detain a person who is in a public place or school, and anything in their possession or custody
- seize and detain anything found during the search that meets the below criteria
Criteria for use:
The officer must suspect on reasonable grounds that the person has in their possession or control (including in their school bag or locker) a dangerous implement
What is the search power provided by LEPRA s27 and when can it be used?
Power:
- search a person arrested for an offence or under a warrant at or after the time they have been arrested, and
- seize and detain anything found that meets the criteria below
Criteria for use:
The officer must suspect on reasonable grounds that it would be prudent to search the person to ascertain if they are carrying anything
- dangerous
- that could be used to escape custody
- that “is a thing with respect to which an offence was committed”
- that will provide evidence of an offence
- that was or is intended to be used in connection with an offence
*NOTE: the criteria only refer to ‘an offence’, not necessarily the offence the person was arrested for
What is the search power provided by LEPRA s28A and when can it be used?
Power:
- search a person who is in lawful custody after having been arrested, and
- seize or detain ANYTHING found during the search
Criteria for use:
- None! freebie!
What constitutes a ‘person search’ as opposed to a ‘strip search’
Where in LEPRA is this defined?
LEPRA s30 ‘searches generally’ outlines that a person search can include:
- running hands over outer clothing
- requiring the person to remove coats/jackets, gloves, shoes, socks, hats
- examining anything found
- running a metal detector over the person
A strip search is anything that goes beyond this, including searches that don’t remove inner clothing but allow a visual examination of the person’s genitals, buttocks, breasts or underwear (e.g. pulling jeans out to see undies)
What section of LEPRA allows police officers to conduct strip searches, and when is this allowed?
LEPRA s31 states that for a strip search to occur:
- The officer must already have a power to search the person (e.g. under LEPRA s21, 23, 27, 28A)
AND
- the officer must have the following state of mind:
- [if search carried out in a police station] the officer must suspect on reasonable grounds that a strip search is necessary ‘for the purposes of the search’ (i.e. to find the thing they were searching for in the first place)
- [if search carried out elsewhere] the officer must suspect on reasonable grounds that a strip search is necessary and that it must be done away from a police station because of ‘the seriousness and urgency’ of the circumstances
What steps must police officers take to preserve privacy and dignity when conducting searches (of any kind)?
Where in LEPRA is this specified?
LEPRA s32 requires that police officers conducting searches must, as far as reasonably practical, ensure that:
- tell person being searched if they need to remove clothes, and explain why
- ask for person’s cooperation
- allow reasonable privacy
- search as quickly as practicable
- search in least invasive way practicable, including avoiding genital/breast areas unless suspect on reasonable grounds necessary
- must be conducted by same sex officer
- can’t question the person while searching
- allow to re-dress as soon as search finished, and provide appropriate substitute clothing if you’ve seized any clothing
What rules must police officers follow when conducting strip searches?
Where in LEPRA is this specified?
LEPRA s33 requires that police officers conducting strip searches must, as far as reasonably practical, ensure that:
- search conducted in a private area (not just ‘with reasonable privacy’ like a person search)
- not conducted in view/presence of anyone of the opposite sex
- not conducted in view/presence of anyone unnecessary
- no cavity examinations
- no examination by touching
- for children 10-18yrs old, a parent/guardian or someone else acceptable to the child must be present to represent their interests
LEPRA s34 also states that strip searches are never allowed on children under the age of 10.
What is the search power provided by LEPRA s36 and when can it be used?
Power:
- stop, search and detain a vehicle
- seize and detain anything found that meets below criteria
Criteria for use:
The officer suspects on reasonable grounds that
- (Stolen) vehicle contains or passenger controls/possesses anything stolen or unlawfully obtained
- (vehicle used in offence) vehicle is/was used in connection with commission of a relevant offence
- (thing used in offence) vehicle contains anything used in connection with commission of a relevant offence
- (Dangerous article) vehicle in public place or school and contains dangerous article that is/was used in connection with a relevant offence
- (Drugs) vehicle contains or passenger controls/possesses a prohibited plant or drug
- (public safety) exercising this power would lessen a serious risk to public safety near a public place or school
What principle/framework do police use when building reasonable suspicion to conduct a search?
The THIS principle:
T - time and location
H - history about a person, place or thing
I - intelligence
S - situation
What are ‘the three Cs’ in relation to searches?
- consent - I do not require your consent
- cooperation - I request that you cooperate
- comply - if you fail to comply you may be committing an offence
