Can Police Search Me on the Street?

The short answer is sometimes. A stop-and-search on the street is lawful under section 3(1) of the Search Act (Chapter 341), but that section is narrower than most people — and, in practice, than some officers — assume.

What section 3(1) actually requires

A policeman may stop and search you where he believes on reasonable grounds that you have in your possession:

• anything that has been stolen or otherwise unlawfully obtained; or
• anything used or intended to be used in the commission of an indictable offence.

Three things follow, and each is a real limit.

It must be about possession. The belief has to be that you are carrying something — not that you look out of place, not that you were near where something happened, not that you are the kind of person who might.

The second limb is confined to indictable offences. Those are the serious ones tried in the National Court after committal. See how a criminal case moves through the courts.

“Reasonable grounds” has two limbs. Under section 1(2), the officer must personally hold the belief and there must be reasonable grounds for it. A hunch with nothing behind it fails; a set of facts nobody actually turned their mind to also fails.

The other times you can be searched

Section 3 has four further limbs, covered in full in part 2 of this series:

• On arrest (s 3(2)) — for a weapon, or to prevent loss or destruction of evidence of the offence arrested for. Those two purposes only.
• Before detention in a police lock-up, rural lock-up or corrective institution (s 3(3)).
• Boarding a craft (s 3(4)) — by the owner, the person in command, someone they authorise, or a policeman.
• Danger to a craft (s 3(5)) — where the person in command suspects a passenger is a danger to the craft’s safety.

How the search must be done

Whichever limb applies, section 4 governs the manner:

• the searcher may touch your body and clothing — that is the authority granted;
• the search shall be conducted with due regard to decency;
• the searcher shall not use greater force than is reasonable in the circumstances; and
• a search of a female shall only be carried out by or in the presence of an adult female.

The single exception to the last rule is section 4(5): where a policeman has reasonable grounds to believe a female he has arrested is carrying a firearm or offensive weapon, he may seize the weapon — with due regard to decency, and using no more force than is reasonable.

If something is taken

Under section 10(1), a policeman may seize anything found during an authorised search that he believes on reasonable grounds is stolen or unlawfully obtained, has been or is intended to be used in an indictable offence, or will provide evidence of an offence.

If that happens, section 12 requires the officer to enter it in a permanent register of property — a full description with identification marks, the time and date, and the place and person it was taken from. Ask for that entry. See how to get seized property back.

What to do at the time

1. Do not resist or run. An unlawful search can be remedied afterwards; resisting creates a new offence and a risk of injury.
2. Ask what they are looking for. The answer identifies which limb of section 3 is being used, and it is worth remembering exactly.
3. Say clearly whether you consent. If you do not, say so once, calmly, and then comply. Consent can matter later.
4. Note the details — names, ranks, unit or vehicle, time, place, and any witnesses.
5. Ask for a record of anything seized.
6. Write it all down the same day, while you remember it.

If the search was unlawful

Section 17 makes a person who searches in breach of the Act, or who fails to perform a duty imposed by it, liable in damages to the person aggrieved — and the court may award exemplary damages. The constitutional route runs alongside it: section 44 of the Constitution protects freedom from arbitrary search and entry, section 49 the right to privacy, and sections 57 and 58 provide for enforcement and compensation. See suing over an unlawful search.