‘Strange Behaviour Not Enough For An Unlawful Police Search

June 14, 2019

Serious criminal charges against a man who was sitting in a car in which police found drugs, $18,600 cash, a knuckle duster and other items have been dismissed after the Court found that the police search of the car was unlawful.  The police officer who searched the car couldn’t remember what circumstances gave him the power to search, and the Court found it troubling that he gave evidence about the reasons for his search that he made no note of at the time.

Police Received Tip Off

The police had apparently received a ‘tip-off’ that there was illicit drug activity at an address in Ridleyton.  They were parked down the street one evening keeping the house under observation when they saw someone who ‘looked like a man’ coming from the house and walk to a car that was parked across the street.  

After some minutes the police drove past the car to get a look at who was inside. One of the police officers saw the occupant of the car ‘duck his head’ as they approached.  After parking to wait for the car to come out of the street, the police drove back and parked behind the car which was still across the road from the house.

According to one of the police officers, as he walked up to the car he noted that the engine was on and the driver was trying to crouch down into the foot well.  This seemed strange to the officer who concluded that the man was trying to avoid being seen. He knocked on the window of the car and the man put down the window.  When he was asked why he had been sitting out the front of the house for ten minutes the man was said to have replied that he knocked on the door but his friend wasn’t home.  The officer said, “I saw you walk from the front door after leaving the house,” to which the man replied, “No comment.”

Man Appeared Very Nervous

The police officer said that the man appeared very nervous and would not make eye contact.  The officer told the man that he was going to search the car ‘under the Controlled Substances Act.’  Interestingly, at the time the officer made no note of the man’s apparently ‘nervous demeanour’ nor did he make any mention of it in a statement he wrote later.  

At the time of the trial this officer was no longer serving in South Australia but had moved and was now a police officer in Queensland.  Although the trial was only 16 months after the incident, when he was asked what power he had to search the car the police officer said that he was unsure of any particular requirement involved as it had been a while since he had to use South Australian legislation.

Under the Controlled Substances Act a police officer can search a vehicle if they reasonably suspect that any substance or equipment that would afford evidence of an offence against that Act is in the vehicle.  There is also a power for police to search a vehicle under the Summary Offences Act when there is reasonable cause to suspect that there are stolen goods, or there is an object that it is an offence to possess, or there is evidence of the commission of an indictable (serious) offence.  

So the question was whether any suspicion that this police officer held was reasonable.  The Courts have said that ‘suspicion’ is more than ‘a mere idle wondering whether’ something exists or not but a positive feeling of actual apprehension or mistrust.  The requirement for a suspicion to be ‘reasonable’ means that there is an element of objectivity in the assessment. In other words the information available shouldn’t just produce a suspicion in the mind of the particular police officer, but should be able to create that suspicion in the mind of any reasonable person. Suspicion isn’t the same as ‘belief’, but is described as a ‘working hypothesis for which there is some supporting material’, not just mere curiosity or speculation.

The issue was that the information the police had received related to the house.  Neither the man nor his car were mentioned in the information given to the police about ‘illegal activity’ in the house.  The police officer said that as they were going to search the house, he believed that the car was ‘in relation to that address’ however he did not say that he actually suspected there might be drugs in the car.

In support of their case that the search was legal, the prosecution said that the actions and behaviour of the man along with the knowledge that the police had about the house amounted to a reasonable suspicion.  He was parked out the front of the house and had been sitting in the car for about ten minutes. He ducked down in the foot well of the car when the police went past and remained there until the officer knocked on the window, and he appeared nervous and kept looking down at his feet and at the centre console.

Fundamental Understanding Of Powers

On the other hand, the man made raised a number of issues including the point that as the police were in an unmarked car it wouldn’t have been apparent to him that they were police officers.  The fact that there was no record made by the police officer that the man appeared nervous raised the possibility that the officer had ‘made that up’ at the trial. The Judge said that the absence of any note being made by the police officer about the man appearing nervous was ‘troubling’ and that the officer did not demonstrate any fundamental understanding of the powers upon which he was acting.  The comment was made that the process of reasoning appeared to be that the car is near a drug house, so it must have drugs in it. It was clear that the police thought something strange was going on, but that wasn’t enough.

The Judge found that the search of the car was unlawful.

As we have written about a number of times, this does not automatically mean that the evidence obtained from the search can’t be used.  The Court has a discretion as to whether or not to allow police to rely on evidence that has been obtained unlawfully. This involves balancing the public need to bring to justice those who commit criminal offences with the public interest in protecting individuals from unlawful or unfair treatment.  The Court does not want to be seen as given approval or encouragement to unlawful conduct on the part of those who have the job of enforcing the law. In this case the charges were very serious and what the police found in their search of the car was important to their case. Without that evidence, the charges would fail.  Nevertheless, the Court decided that the evidence should not be allowed, noting that the exclusion of evidence obtained unlawfully is in the public interest so as to ensure that statements of disapproval regarding unlawful conduct by the police don’t appear hollow and insincere.

We continue to see cases of police relying on insufficient ground to justify an unlawful search.  For example: Can Police Search Me If I Don’t Say Hello?  In some circumstances, an unlawful search can even be the basis of legal action against the police.  If you have been charged with an offence or are concerned about the manner in which police have conducted a search, the sooner you act, the better. Websters Lawyers has a team of outstanding criminal lawyers who can assist you. Contact us today for a free first interview.