Key Takeaways

1. NSW Police only have the power to search your vehicle in limited circumstances, namely:

• • with a search warrant; 
  • if they have “reasonable grounds” to suspect certain matters;
  • if you consent.

2. If the police conduct an unlawful search, the evidence obtained as a result of the search may be excluded by a court.

3. If the police want to search your car, you should tell them that you do not consent but that you will not hinder them either. 

Lawful Vehicle Searches

NSW Police do not have the power to conduct random searches of motor vehicles.  Instead, they can only search your car in limited circumstances, each of which we will now discuss.  

Search Warrants

Under section 47 of the Law Enforcement (Power and Responsibilities) Act 2002 (“LEPRA”), the police can apply to an eligible issuing officer for a search warrant in respect of any “premises”.  A “premises” is defined in section 3 of LEPRA to include a “vehicle”.  

The police can only apply for a search warrant if the police believe on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a “searchable offence”.  A “searchable offence” is defined in section 46A to include a narcotics offence, a firearms offence, any offence involving a stolen thing and any indictable offence.  

Whilst it is not difficult for applications for search warrants to be approved, the application process is not quick.  As a result, most vehicle searches are not conducted with warrants.  

Reasonable Suspicion

Under search 36 of LEPRA, the police have the power to stop, search and detain your vehicle if they suspect on reasonable grounds any of the following: 

• • Your car or a person in it has anything stolen or unlawfully obtained; 
  • Your car is or may have been used in connection with a relevant offence; 
  • Your car contains anything used or intended to be used in connection with the commission of a relevant offence; 
  • Your car is in a public place or school and contains a dangerous article that is or may have been used in connection with the commission of a relevant offence; 
  • Your car or a person in it has a prohibited drug; or
  • Circumstances exist in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and the searching of your car may lessen that risk.

When conducting a search, a police officer may seize and detain any of the following items found as a result of a search under section 36 of LEPRA: 

• • Anything that the officer suspects on reasonable grounds is stolen or unlawfully obtained; 
  • Anything that the officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence; 
  • Any dangerous article; and
  • Any prohibited drug 

A “relevant offence” is defined in section 35 of LEPRA as:

a. an indictable offence

b. an offence of possess dangerous articles other than firearms, contrary to section 93FB of the Crimes Act 1900; and

c. an offence against the Weapons Prohibition Act 1998 or the Firearms Act 1996. 

A “dangerous” article is defined in section 3 of LEPRA to include a firearm and any prohibited weapon. 

When will the police have a reasonable suspicion?

In NSW, the courts have held the following in relation to reasonable grounds to suspect in the context of police searches: 

• • A reasonable suspicion involves less than a reasonable belief but more than a mere possibility.
  • A reason to suspect that a fact exists is more than a reason to consider to look into the possibility of its existence. 
  • Reasonable suspicion is not arbitrary or random.  
  • Some factual basis for the suspicion must be shown, although the factual basis does not need to be based on evidence that would be admissible in court. 
  • When the court is determining whether the police had reasonable grounds to suspect a circumstance said to justify a vehicle search, what is important is the information in the mind of the searching officer. 

Whether or not the police have reasonable grounds to suspect for the purposes of section 36 of LEPRA will depend on the facts and circumstances of each case.  

Some of the circumstances which have been held by the courts to not be sufficient to create a reasonable suspicion in some situations include the following:

1. The driver’s criminal record only: Corey O’Connor v R [2010] NSWDC.

2. Police “intel” (intelligence) that the car is a “suspect” vehicle and may be involved in a break and entering offence: Streat v Bauer (unreported, Supreme Court of NSW, 16 March 1998). 

3. The driver reaches over and places something in the glove box: R v Rondo [2001] NSWCCA 540.

4. Attempting to avoid a random breath test: R v Orm [2011] NSWDC 26.

5. Refusing to consent to a search in a robust manner: Streat v Bauer (unreported, Supreme Court of NSW, 16 March 1998). 

It is important to note that the above cases were decided on their own unique facts and circumstances and there is no hard and fast rule as to which circumstances will give rise to a reasonable suspicion and which will not.  

Consent 

When the police decide to search a vehicle, they will often first ask you whether you consent to the search.   

If you provide the police with consent to search your car, the search will be lawful.  This is the case even if the police did not otherwise have a lawful basis to search your vehicle.   

For this reason, it is advisable that you tell the police that you do not consent to the search of your vehicle.  This will preserve your right to challenge the search in court in the future, if necessary.  

Do the police need to inform you of your right to refuse consent?

In general, the police are not required to inform you of your right to refuse to consent to a search.   

Furthermore, if you consent to the search, it will still make the search lawful even if you were not aware of your right to refuse to consent to the search.  

However, if you consent to the search as a result of a misrepresentation, trick or other improper behaviour on the part of the police, the consent may not be valid and therefore the search may be illegal.  

Other grounds to lawfully search vehicles

In addition to the above, there are some laws that confer upon the police the power to search vehicles in specific circumstances.  The two most of common of these are: 

1. To perform a random breath test; and

2. If you are subject to a firearms prohibitions order. 

Stopping vehicles to perform a random breath test

Under Division 2 of Schedule 3 to the Road Transport Act 2013, the police have the power to stop your vehicle in order to request or signal for the driver of a vehicle to submit to a random breath test (“RBT”).   

If you fail to comply with such a request or signal, you will be committing an offence punishable by a fine of up to $1,100.  

However, it is important to understand that the police are not allowed to use this power as a ruse to stop a vehicle when the real purpose is conducting a criminal investigation: R v Buddee [2016] NSWDC 422; R v Large [2019] NSWDC 627. 

So, for example, if the police want to stop your car to search for drugs but they know that they do not have a reasonable suspicion to do so, they cannot rely on their power to stop your car for the purpose of subjecting you to a RBT.   

Searching vehicles occupied by persons with firearms prohibition orders 

Under section 74A(2)(c) of the Firearms Act 1996, a police officer has the power to stop and search any vehicle occupied by or under the control or management of a person subject to a firearms prohibition order (FPO).  

The police officer can only exercise this power “as reasonably required” for the purpose of determining whether the person is in possession of a firearm, a firearm part or ammunition.  

Consequences of an illegal search

If the police search your car without a lawful basis, the search will be illegal.  

If the search is illegal, any evidence obtained during the search is liable to being excluded by a court.   

In NSW, the courts have the discretion to exclude evidence that was obtained improperly or in breach of an Australian law.  Specifically, section 138 of the Evidence Act 1995 provides that evidence that was obtained improperly or in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.  

Some factors that the court will consider when deciding whether to exclude evidence obtained from an illegal vehicle search include the following: 

1. The probative value of the evidence.  The more relevant the evidence, the less likely the court will exclude it. Generally, evidence of items found by police during vehicle searches is highly relevant.

2. The importance of the evidence in the proceedings.  The more important the evidence, the less likely the court will exclude it.  Evidence will be more important when there is a lack of other evidence.  So, for example, if the only evidence that you had drugs in your car is the finding by the police of the drugs during their illegal search, the evidence will be very important.   

3. The nature of the relevant offence.  The more serious the offence you are charged with, the less likely the court will exclude the evidence.  

4. The gravity of the impropriety or contravention.  The more serious the improper conduct or breach of the law, the more likely the court will exclude the evidence. 

5. Whether the impropriety or contravention was deliberate or reckless.  If the police officer has intentionally acted improperly or breached a law, it is more likely that the court will exclude the evidence than if they did so recklessly or by mistake.  

So, if you are charged with a criminal offence as a result of an item that the police seized during the search of your car and you wish to plead not guilty, your lawyers may wish to challenge the lawfulness of the search at your hearing.  If your lawyers are successful in persuading the court that the search was unlawful, they can then argue that the court should exclude the evidence obtained as a result of the search.  If this occurs, you will likely be found not guilty of the crime.  

What should you do if the police tell you that they want to search your vehicle?

If a police officer tells you that they want to search your car, you should do the following:

1. Stay calm and polite.  If you are defensive, aggressive or overly nervous, the police may try to rely on this in the future to justify their search in court.  

2. Communicate clearly to the police that you do not consent to the search of your vehicle but that you will not stand in their way.  This will ensure that you are not charged with hindering police but will preserve your right to challenge the lawfulness of the search at any future hearing in court.  It may be prudent to use words to the effect of: “I do not consent to the search of my car but I won’t stand in your way while you search it.” 

Need assistance?

If you are charged with a criminal offence arising from a search of your vehicle, it is crucial that you speak with a criminal lawyer immediately.  

Hanna Legal is one of NSW’s leading criminal law firms and our criminal lawyers have extensive experience in successfully challenging searches of vehicles in the Local Court and District Court. 

If you or someone you know requires legal advice, call us on (02)9268 0444 or email us at info@hannalegal.com.au to arrange an initial conference.