Imagine you have attended a public event with police presence. The police have approached you and start asking you questions because they think that you may be carrying something illegal. You feel nervous and intimidated. What are you required to do and what rights do you have?
What the law says the police can do
At public events, it is common to have police looking for patrons who have drugs on hand. To do this, the police will often question and search people. The power to search people suspected of carrying drugs is granted to the police via section 68(1)(b) of the Summary Offences Act.
As per the Summary Offences Act (SA) s68(1)(b) police officers may search ‘a person who is reasonably suspected of having, on or about his or her person—
- stolen goods; or
- an object, possession of which constitutes an offence; or
- evidence of the commission of an indictable offence’.
Your right to silence
If the police reasonably suspect you may have something illegal on your person they may want to question and search you. While it is always best to be cooperative and calm with the police, it is best to say less than more. Under section 74A of the Summary Offences Act, the police can demand you provide personal details. Personal details include:
- The person’s full name; and
- The person’s date of birth; and
- The address of where the person is living; and
- The address of where the person usually lives; and
- The person’s business address; and
- If the police officer has reasonable cause to suspect that a person has committed, is committing, or is about to commit a sexual offence involving a child or children – the name and address of any place where that person works (whether as an employee, an independent contractor, a volunteer or in any other capacity).
You may also be required to show proof of the information you provided, such as showing identification. You must comply with this. It is an offence to falsely provide this information. Beyond this, you do not have to say anything else.
It is important to remember that you have the right to silence and using this right does not mean you are guilty nor can your use of this right, be used at a later time by the police to imply you are guilty or were being uncooperative. This right to silence goes beyond simply speaking. The police may want to search your phone, in this event you do not have to give the police your password or passcode to unlock the phone. Not providing this information is part of your right to silence. The contents of the phone are an extension of you speaking, which is why you do not have to give the police access to this information. If you do provide your passcode, any data gained from the phone from that point onward will be seen to have been willingly provided and can legally be used against you in court.
While it is best to cooperate with the police, it is advised to say little beyond the information you are legally required to provide, as anything you say or do can be used against you in a court of law. The police may pressure you to answer questions. If this happens, you can ask them if you are answering as a volunteer or if you are under arrest. The police have to answer this. If you are answering as a volunteer you can say that you do not volunteer to answer. If the police say you are under arrest, they must read you your rights and place you into their custody. At this point you still do not have to talk, and it is advised that you do not.
The police do not have unlimited powers to search people whenever they want. Police need reasonable cause. The law has not properly defined what reasonable cause is, which gives the police the opportunity to present more creative reasons for searching. An example of the police having reasonable cause is if a sniffer dog sits in front of you, or if the police officer can smell cannabis on you. The police officer could have any number of reasons why they feel they have reasonable cause to search you and they do not have to inform you of those reasons. What is or is not reasonable will always depend on the circumstances.
One thing to remember is not all searches are lawful. If the police want to search you, when they inform you of this, you can tell them you do not consent to the search. The police will probably ignore your objection; however, this means you are protected if the search is deemed unlawful because anything found on your person during an unlawful search cannot be used in evidence. However, if you consent to the search, (consent can be implied through staying silent) then regardless of the fact that if the initial search would have been deemed unlawful, the search is now deemed lawful. Always let the police officer know you do not consent to the search. Lastly, it is an offence to hinder the police officer’s attempt to search you. Make sure you cooperate with them.
Under the Summary Offenses Act (SA), a strip search is called an ‘intimate search’. This type of search is defined as ‘a search of the body that involves exposure of, or contact with the skin of, the genital or anal area, the buttocks or, in the case of a female, the breasts’. An intimate search also includes looking down one’s pants into underwear or down the front of a female chest. If the police want to strip search you, let them know you do not consent. The officer will most likely continue anyway. Under the Act, except where it is not reasonably practicable to do so, a strip search must be carried out by a person of the same sex or gender identity as the detainee (unless the detainee requests otherwise). Lastly, the law states that unless it is not practical the police must film the strip search. Understandably, this is intimidating and embarrassing, but it is in your best interests to have the strip search recorded, so there is proof, in case the police committed an unlawful act during the search.
The police cannot perform cavity searches! Under the Act, a cavity search is defined as an intrusive search; which means ‘an internal search involving the introduction of anything into a bodily orifice’. This includes your mouth. Furthermore, under the Act, an intimate intrusive search is defined as ‘an intrusive search of the rectum or vagina’. Only a medical practitioner or registered nurse can perform intrusive and/or intimate intrusive searches and for this to be legal, you must have first been arrested.
If you are arrested
If you are arrested the police officer must read you your rights. As soon as reasonably practical the police officer should let you know anything you say can be taken down and used against you in evidence, that you have the right to make a telephone call so a relative or a friend can be present during the questioning, and that you can call a lawyer. It is recommended to have a lawyer present for the interview, but if this cannot happen then it is best to not say anything during the interview. Not speaking does not imply guilt. You can get a lawyer at a later stage. Speaking during an interview without a lawyer present, rarely benefits the person who has been arrested.
Johnston Withers Lawyers: Experience You Can Trust
Johnston Withers Lawyers have experience assisting clients with criminal matters, including dealing with police if you have been arrested. If you would like advice or representation, contact us on (08) 8231 1110, or get in touch online.