Your Rights with Cops: Dogs, searches, complaints... and K9 units
Regardless of whether we’ve done something wrong, none of us like dealing the police. When stopped by the police, it can be difficult to know what you should do, which is why it’s important to know what your rights are when dealing with the police.
In saying that, NONE OF THIS IS LEGAL ADVICE AND SHOULD NOT BE TAKEN AS SUCH! It is also not your how-to-guide on not getting pinched. It’s simply information about what is required from you, and what to expect, when dealing with the cops.
Police Questioning
The golden rule when dealing with police is this: LOOSE LIPS SINK SHIPS.
While you legally must provide police with certain information in specific contexts, you generally have the right to silence.
You do have to give your name and address if police are trying to serve you with a fine or warrant, or if they think you may be a witness to a serious offence. If you are driving a car, you may be required to show the police your licence. Passengers may also be required to provide details about the driver if the police suspect the driver has committed an offence. In these situations, police must warn you that failure to provide correct details may be an offence.
The police can ask you questions at anytime, anywhere - at home, on the street, at the police station - but you do not have to answer them (except by giving your name or address in the situations already mentioned). In any situation it is probably a good idea to give them your name and address, but you do not have to answer any further questions.
While you have a right to silence, it’s always a good idea to be polite in your interactions with the police. Police officers have a lot of power over us in these situations, so maintaining a sickly- sweet air of politeness with them often will lead to a more positive outcome for you.
Cannabis Cautions
One situation where talking to the police about drugs may actually work out in your favour if you are caught in possession of a small amount of cannabis. This is because of the Cannabis Cautioning Scheme. If you’re caught with a small amount of cannabis (less than 15g), you can receive an official warning, or caution, instead of being charged with possession.
However, police can only issue a cannabis caution if you admit to the offence – you have to say that the drugs are yours. So, if you’re eligible for a cannabis caution, and know that they can’t nab you for anything else, you may decide that it is better to admit possession of the drugs. However, this is not a decision to be taken lightly, and not everyone is given a caution.
Police Assistance Dogs AKA Sniffer Dogs
A lot of people are worried that if they carry drugs on them, they will be caught by dogs or searched by police. This is one reason people pre- load on drugs before going into a festival and was identified by the NSW Coroner as a significant factor in at least one of the drug-related deaths that happened in the 2018-19 festival season.
However, just because you are carrying drugs doesn’t mean you will be picked up and just because you aren’t doesn’t mean you won’t be. Multiple reviews of the NSW Police Assistance Dog program have found that sniffer dogs have high instances of false positive and false negative indications.
In fact, a research article, ‘Handler beliefs affect scent detection dog outcomes’ (Lit 2011) in an academic journal called Animal Cognition concluded that sniffer dogs are excessively influenced by their handlers. In the study, the dog’s handlers were given false information that scents were present in specific places. They found that handlers prompted their dogs to ‘indicate’ that they smelt the non-existent targets, and the dogs obeyed.
The message out of this is: your behaviour and police stereotyping are probably bigger predictors for whether you’ll be stopped by dogs than whether you are carrying drugs. Watch a few of those shows about airport customs procedures and you’ll see how many people get pinched for looking nervous, trying to avoid dogs/police, not having stories straight, and not being white.
Police Searches
Legally, the police can stop, search and detain anyone if they “reasonably suspect” that person is carrying drugs or anything dangerous or unlawful (e.g. a weapon). They don’t need a search warrant – the only basis required for a search is a reasonable suspicion held by the police officer. There must be a factual basis for the suspicion.
Police guidelines direct police to consider things like the time and location, your behavior and whether you are known to police. Simply being at a music festival is not enough a reasonable ground to suspect you are carrying drugs.
At some large festivals and multi-day events, the police can obtain a warrant that covers the festival grounds and surrounding areas. This could give them the right to search persons, cars, tents, bags and other property at the festival without having to form a “reasonable suspicion”.
The police don’t require reasonable suspicion to search you if they ask and you say yes (or otherwise consent). If you do not consent to a search, make sure to clearly state this and ask that it be officially recorded by the officer involved. If you have been stopped by the police at a festival, it is likely that they will search you regardless of your consent. It’s best to remain calm and comply with any searches but tell the officer you do not consent to being searched and ask this is noted (it may help if you make a complaint or end up in court).
If you do not consent to a search, make sure to clearly state this and ask that it be officially recorded by the officer involved.
Collecting Evidence
When a police officer stops you for any reason, you can ask for their name, rank, and place of duty. They must tell you when asked. If possible, ask while they are on film, or record their details in case you need to refer to them later in making a complaint or for a court case.
It is always legal to film in public places – including, and especially, filming the police. During police stops or searches, we suggest that you or someone else tries to film as much of the interaction as possible. You are entitled to have a personal representative/support person present during a strip search. It is legal for them to film your interactions with the police, as long as they stand some distance away and are not interfering with police proceedings. Police can not tell you to delete images or recordings from your phone.
After a search, record in detail what happened as soon as possible. That way, you can make a complaint if you believe your rights have been breached, and will you have a reliable account of events if you decide to go to court.
What to expect during a search
When searching you, a police officer may:
Ask you to empty your pockets;
Ask you to remove outer garments, such as coats, shoes, socks and hats;
Search your bag or other belongings
Ask you to shake or move your hair;
Run their hands over the person’s outer clothing; and
Ask you to open your mouth and shake your hair.
Anything more than this will no longer count as a regular search and may instead considered a strip search.
If the police require you to remove your clothes, other than just outer clothing, you are being strip-searched.
For a strip search to be legal, the police must believe on reasonable grounds that it is necessary and that the seriousness and urgency of the circumstances require one.
Strip searches must to be carried out in a private enclosed area, (e.g. a tent), and the search must be conducted by an officer of the same sex. No one should be present other than those needed for the purposes of the search, and nor should any item of clothing be unnecessarily removed.
Police can’t search any body cavities – it is not legal for them to tell you to squat and cough, as this counts as a cavity search.
If Police wish to conduct a strip search, they must:
• Tell you whether you will be required to remove clothing during the search;
• Tell you why it is necessary to conduct the search;
• Provide a private area for the search to be conducted; and
• Ensure an officer of the same sex conducts the search.
If these things have not been done and you feel your dignity and privacy are being violated, you have the right to request that these provisions are met before the search commences.
Move-on Directions
Police have the right to give you a move-on direction if you are in a public place and they have reasonable grounds to believe that:
you are obstructing another person or traffic; or
you are harassing or intimidating another person; or
you are likely to frighten a reasonable person; or
you are there to obtain or supply drugs.
Police have no right to move you on just because you can’t give a reason for being there. The law doesn’t say what kind of direction the police may give. The law only says that the police direction must be reasonable in the circumstances to reduce or stop the problem behaviour (e.g. the obstruction of traffic or the drug dealing).
What do I do if the police tell me to move on?
If the police do approach you and tell you to move on, the police officer must first:
tell you his or her name and the name of their police station;
tell you the reason why you must move on; and
warn you that if you don’t obey the direction you are committing an offence.
Even if you think the police have no right to tell you to move on, it is usually better to do what the police tell you, rather than losing your temper or swearing at the police. This will give them grounds to arrest you and take you to the police station. It’s usually a better option to follow their direction, and you can challenge the direction or make a complaint later.
What happens if I don’t move on?
If you fail to obey the direction, the police officer may give the direction again, with another warning that it’s an offence to disobey. If you disobey the second direction, you may be issued with an on-the-spot fine for $220. Alternatively, the police may arrest you and charge you or give you a court attendance notice. If you are fined or charged, we recommend that you get legal advice. You may have a very good chance of beating the charge in court.
Seizure of Property
Police have a right to confiscate property from you such as: weapons and dangerous implements; prohibited drugs; anything they believe is stolen or unlawfully in your possession, and anything they suspect has been, or is being, used in connection with a serious offence.
Often if police confiscate your property, they will fine you or charge you with an offence. If you are found not guilty, the court will usually order the police to give your property back.
If police confiscate your property without fining or charging you, you can apply to the police get the property back. If the police won’t give it back, a lawyer may be able to help you. In some cases, your property can be confiscated if police believe it’s associated with criminal activity, even if you haven’t been convicted of an offence. If this happens you should seek legal advice.
Making a Complaint
If you believe that you are being unfairly harassed by police, you have the right to make a complaint about it. The Law Enforcement Conduct Committee (LECC) is a body that independently investigates serious misconduct by police officers of the NSW Police Force.
Some of the issues that LECC will investigate include: police taking bribes; perverting the course of justice (e.g. planting fake evidence or interfering with evidence); serious assault; interfering in police investigations; manufacturing, cultivating or supplying prohibited drugs; and any crimes attracting a minimum of five years imprisonment. If your complaint is not considered ‘serious misconduct’, the LECC will refer it back to the NSW Police Force to be dealt with internally.
If the LECC finds that your complaint if valid, the police may have to apologise to you, or even pay you compensation.
Unfortunately, these sorts of complaints often get nowhere — but this doesn’t mean you shouldn’t complain! Your complaint has more chance of success if it is backed up by statements from witnesses or from other people who have been treated by the police in a similar way.
You should write down as much about the incident as possible soon after the incident. If you need help writing the complaint, a legal service like Redfern Legal Centre or another Community Legal Centre can help you. You can also get help from a youth worker or other support person.