The Facts
Motorcyclist stopped by police and searched
A man was riding a motorcycle along a road when he was stopped by police for not having his helmet strap done up. The man appeared to be nervous. The police officer made enquiries and found out that the man had previous charges of drug possession and was on bail for manufacturing a prohibited drug. The police officer also observed “ice sores” on the man’s face.
Accordingly, the police officer formed the view that the motorcyclist might be in possession of drugs and decided to search him. In searching the man, the police officer conducted a frisk search and also put his hand inside the man’s jeans and into his genital area.
The man resisted and said: “You can’t do that”. He was then handcuffed and a strip search was performed. The strip search was conducted in public on the roadside in front of other officers. A plastic bag containing methamphetamine was found in the man’s genital area.
Expert commentary on the court's decision
Police officer’s “reasonable suspicion” originated from unlawful act
In the case Daniel Fromberg v R [2017] NSWDC 259, the District Court found in favour of the motorcyclist.
The court decided that the “reasonable suspicion” that the police officer had to conduct a strip search originated from his own unlawful act, of shoving his hand down the man’s jeans while he was only meant to be conducting a frisk search.
If the police officer had conducted a frisk search first, it is likely he would have detected the drugs and this would have amounted to a reasonable suspicion.
Evidence obtained by unlawful searches deemed to be inadmissible
Touching a person’s body is prohibited in a strip search. Additionally, no efforts were made by the police officer to provide for reasonable privacy. Rather, the strip search was conducted in public and in front of other officers whose presence was not necessary for the search.
The court determined that the gravity of the breaches by the police officer of the Law Enforcement (Powers and Responsibilities) Act (LEPRA) meant that the evidence resulting from the conduct of the searches was inadmissible. This meant that there was no evidence to support the prosecution case and the charge of drug possession against the motorcyclist was dismissed.