The law requires that police must have a suspicion “on reasonable grounds” that drugs are present on a person or in a vehicle before conducting a search. Failure to comply with sections 21 and 36 of the Law Enforcement (Powers & Responsibilities) Act 2002 (LEPRA) can result in a case being dismissed in court.

What is a ‘Suspicion on Reasonable Grounds’?
Courts have clarified that:
Reasonable suspicion falls between a mere possibility and a firm belief that drugs are present at a particular time.
Suspicion cannot be arbitrary; there must be a factual basis that can be presented to the Court.
The reliability and consent of the officer’s source must be carefully assessed.

See: R v Rondo (2001) 126 A Crim R 562.

When a “reasonable suspicion” is not established:

Searching someone in a high-drug area simply because they appear nervous.
Stopping a nervous or agitated person for a breath test and conducting a search.
Searching someone based on their own or an associate’s prior drug convictions.
Conducting “random” or arbitrary searches.

When a “reasonable suspicion” may be considered:
Witnessing what appears to be a drug transaction.
Receiving a detailed, real-time report of drug activity where the description matches the suspect or vehicle.
Observing behavior strongly indicating drug possession, such as discarding or hiding an object.

Getting Charges Dropped
If authorities conduct a search without reasonable suspicion, our drug defence lawyers in Sydney can draft a detailed letter to the Local Area Commander, formally requesting withdrawal of the case and highlighting potential legal costs if the charges are not dropped.
If the charges are not withdrawn, we will vigorously pursue dismissal in court. In many cases, clients receive legal costs when the police have conducted an unlawful search.

Excluding Evidence
Under section 138 of the Evidence Act, evidence obtained illegally may be excluded if the undesirability of admitting it outweighs its usefulness. Courts consider:
The significance and impact of the evidence in the proceedings.
The extent of impropriety or legal breach in obtaining the evidence.
Whether the breach was deliberate or reckless.
How difficult it would have been to obtain the evidence legally.

Our defence lawyers work to persuade prosecutors and the courts that evidence obtained through illegal searches should be excluded, often resulting in the case being dropped.

Police have authority under LEPRA to conduct searches when they have reasonable grounds to suspect illegal activity. Legitimate grounds include:
Witnessing a suspected drug transaction.
Receiving detailed reports of ongoing drug activity that match a suspect or vehicle.
Observing behavior suggesting involvement in drug activity, such as hiding or discarding objects.

If a search occurs without reasonable suspicion, our lawyers help clients achieve the best outcome, including formally requesting withdrawal of charges or fighting for dismissal in court.