You’re on a night out with friends when a cop asks you to step aside. You’re watching the fireworks on New Year’s Eve when you notice police officers searching bags. You know you haven’t done anything wrong, but you still freak out just a tad. We’ve all been there.
But what powers do police actually have when it comes to stopping people on the street? What do you need to know, or what should you do, if you are ever stopped by a cop?
Who can arrest me and why?
Firstly, it’s good to know when police can arrest you and what justification they need to do so. Legal Aid NSW has a handy fact sheet on this situation. Broadly, a police officer can arrest you if:
- They suspect you have committed an offence or are about to commit an offence
- They have a warrant for your arrest
- They have stopped you for a breach of the peace (threatening violence, or provoking someone else to be violent)
- They believe you have breached your bail conditions, or
- They need to serve an apprehended violence order (AVO) on you
Name and address
When stopped by a police officer, they may ask for your name and address. In some circumstances you must tell them those details. These circumstances include:
- If police think you are under 18, and are drinking or possess alcohol in a public place
- If you are driving a motor vehicle or motorbike, or are involved in a possible traffic infringement
- If police are telling you to “move on” (that is, to leave a place)
- If you are near the scene of an offence, or police suspect on reasonable grounds that could assist them in their investigations of a serious offence
- If police suspect, on reasonable grounds, that you have an apprehended violence order against you
If you are unsure why the cop might require this information, politely ask. You can also ask the officer for their name, rank, and station of duty – police are required by law to tell you this information. It is an offence to provide police with a fake name or address.
You might have heard police in movies say, “You have the right to remain silent”. And, for once, you’ll be pleased to know that this Hollywood law applies in Australia, too. Most of the time. There are some exceptions, such as when you’ve been involved in a traffic accident or if your vehicle is involved in a serious crime.
Police can only compel you to attend a police interview if you are under arrest. If you are not under arrest, you do not need to go to the police station with the police – even if they ask you to.
If you do attend a police interview, you do not need to answer the questions the police officer asks of you (except your name and address). You have, just like the movies suggest, the right to remain silent. You also have the right to have a lawyer, family member, or friend present during the interview. You have the right to call a lawyer, or support person privately, prior to the interview.
If you happily agree to be searched, police do not need any suspicion to search you. If you refuse the search, then police can only go ahead and search you in specific circumstances, including:
- If they have a search warrant (which you should sight)
- If you are under arrest
- If police suspect, on reasonable grounds, that you are in possession of any of the following:
- prohibited drugs
- stolen goods
- something that can or will be used in a serious crime
- a knife or the like
- If police suspect, on reasonable grounds, that your car may have been used in, or is connected to, a serious offence
Police can search your person, your vehicle, and your possessions if any of the above are satisfied. They can ask you to remove outer clothing (such as a jacket), shake your hair, and/or open your mouth. A police officer can search your phone with your consent, but cannot confiscate your device unless they have reasonable grounds to believe that the device was stolen, that it was used to commit an offence, if you have been arrested, or if confiscating the device will assist controlling public order.
Police cannot strip search you unless they have a valid reason to believe that it is urgent, and necessary (and they must tell you this reason). If police do strip search you, it should be done by a person of the same gender as you (though in some circumstances, this may not be the case). Police must allow you as much privacy as possible, and the search must not be conducted in front of people of the opposite sex or in public view. A police officer cannot search your bodily cavities or examine your body by touch.
Keep calm and carry on
If you are ever in doubt, politely ask the police officer why you have been stopped, why they require certain information, and if you are in any trouble. The most important piece of advice is to stay calm, be polite, and be respectful.
You can be charged with crimes for behaving badly towards police, and this includes doing things like swearing. If you feel like you are being treated unfairly, it is still best to remain calm and collected at the time – you can later make a complaint about any issues.
If you need to call a lawyer, visit the Law Society of NSW Solicitor Referral Service.