Introduction
In certain circumstances, police officers are granted the power to search individuals without a warrant. These situations are governed by specific legal requirements to ensure that the exercise of this power is lawful and justified. This article aims to explain the conditions and criteria that must be met for a police officer to legally search someone without a warrant, based on the relevant case law and statutes in New South Wales.
- Searchable Offenses
To initiate a search without a warrant, the police officer must have a reasonable belief that a “searchable offense” has been committed or is being committed. A searchable offense refers to an indictable offense, as defined under section 46A of the Law Enforcement (Powers and Responsibilities) Act [Joukhador v Commissioner of Police [2018] NSWSC 872]. The offense must be specified with sufficient particularity in the search warrant [Harland v Murphy [2022] NSWSC 1376]. - Reasonable Suspicion
In addition to the existence of a searchable offense, the police officer must possess reasonable suspicion based on reasonable grounds that the person is involved in the commission of the offense [JH v R [2019] NSWSC 192]. This requirement ensures that there is a legitimate basis for conducting the search. - Reasonable Necessity
The police officer must also be satisfied that it is “reasonably necessary” to arrest the person for any matters outlined in section 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act [←JH v R [2019] NSWSC 192]. This criterion ensures that the search is proportionate to the circumstances and that alternative measures have been considered. - Arrest Without a Warrant
To search an individual without a warrant, the police officer must have the authority to lawfully arrest the person without a warrant. This can be based on the person being in the act of committing an offense or having committed an offense [←Director of Public Prosecutions (NSW) v SB [2020] NSWSC 734]. The power to arrest without a warrant is subject to the specific requirements outlined in the relevant legislation.
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