Drug Supply Prohibition Order (DSPO) gives police new search powers in NSW

NSW Police have received radical new powers that allow officers to search the homes and cars of anyone that has been convicted of drug supply in the past 10 years without a search warrant.

The Pilot Drug Supply Prohibition Order (DSPO) passed parliament in May 2022 and will cover the areas of Bankstown, Orana in the central west, the Hunter Valley, and Coffs Harbour, for a two-year trial period.

To obtain a Drug Supply Prohibition Order (DSPO), police are required to apply to a magistrate of the Local Court. An application for a DSPO can be made against a person of interest, being any person convicted of a serious drug offence in the last 10 years.

Whilst the new police powers are purported to be designed to is to tackle drug-related crime by major organised crime groups, the order could be made against someone that was a juvenile at the time of a drug offence a decade ago, or someone arrested for carrying pills into a music festival to supply to their friends.

Once the order is approved, the police will have the power to enter and search the person’s home, car, or boat, at any time, should they have reasonable grounds to suspect that there is evidence of a drug-related crime. The concern then is to what extent police need to substantiate their claims of reasonable suspicion. Claims may go unchallenged and unsubstantiated, particularly where no evidence is seized.

The problem with the Drug Supply Prohibition Order (DSPO) police powers

There is no guarantee that the DSPO and new police powers will do anything to curb crime. Police already have the power to obtain a search warrant to search the premises of a convicted drug dealer. Instead, it just raises concern about the lack of checks and measures to ensure the powers are implemented fairly.

The powers are not only available to regular police but will extend to the newly formed Taskforce Erebus and the notorious Raptor Squad, who have a reputation for abusing police powers and engaging in thuggery.

The police may use force to enter the premises. This includes breaking down doors, subduing dogs and other pets, and searching and seizing anything on the premises or anyone on the premises at the time. The deputy Police Commissioner said himself “Police will be in your face more than ever, disrupting your lives every second of the day”.

What are the current search laws in NSW?

The Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) gives police powers to stop and search a person or their vehicle and other possessions or to enter premises to conduct a search but only in specific circumstances.

In exercising their powers to conduct a search police must abide by certain safeguards set out in the Law Enforcement (Powers and Responsibilities) Act 2002. These include types of searches that can be conducted, in which circumstances, as well as the way in which the searches can be conducted.

If a search does not comply, then the search is considered an unlawful search.  Criminal lawyers can apply to exclude unlawfully obtained evidence, at court, to defend against police prosecutions.

Current Stop, search and detain powers

In NSW, the police can stop, search, and detain a person and anything in their possession or under their control, without a warrant to do so.  However, for anything that is found during the search to be seized and detained for use a evidence against you, one of the following criteria must be met;

  • They have “reasonable suspicion” to do so;
  •  They have a warrant to do so;
  • or you have given them permission to do so;

What constitutes “reasonable suspicion”

For reasonable suspicion, a police officer must

  • Suspect, on reasonable grounds, that a person has something in their possession or under their control that:
    1. Is stolen or otherwise unlawfully obtained
    2. Was used or is intended to be used to commit a relevant offence.
    3. Is a dangerous item in a public place that was used or is intended to be used to commit a relevant offence.
    4. Is a prohibited plant or a prohibited drug.
  • The suspicion must be reasonable.
  • Police must have a clear and reliable indication that you have something illegal on you or in your vehicle or other possessions to lawfully conduct a search. It is not enough that the police officer had an idea that you may have something illegal on you.

Examples of a clear indication that you have something illegal in your possession include, but are not limited to, the following:

  •  Sniffer dog indicated that you were carrying illegal substances or weapons.
  • They saw you conceal a weapon or illegal substances
  • Something was left in plain view when the officer was conducting their normal duties (e.g,. Issuing a ticket for a traffic offence).
  • Information obtained through appropriate channels e.g., Credible eyewitness at the scene
  • A combination of factors when considered in relation to other intelligence obtained.  For example, a person’s behaviour, location, time of incident etc in combination with one another would lead a reasonable person to suspect an offence has or is taking place.

Current powers to enter a private premises

For police to enter private premises they must have a search warrant to do so, except in only limited circumstances. This includes;

1. In an emergency:

The police may enter private premises without a warrant to do so if

    • There is a breach of the peace being committed
    • It’s necessary to enter to end or prevent the breach of peach, or
    • If a person has suffered or is in immediate danger of suffering a significant personal injury.

An example of this would be in the case of domestic violence.

2. To arrest and detain someone or execute a warrant

If the police have reasonable grounds to believe that a person they are looking to arrest and detain or execute a search warrant is on the premises, the police may enter without a warrant to do so.

3. With your permission

Police must otherwise obtain a search warrant to enter private premises including to search and seize evidence.   If the police enter premises without a warrant or under these circumstances, then a complaint about police misconduct can be made.  If the premises is searched, anything that is seized as part of that search cannot be used as evidence against you as the search is considered unlawful.

Search and seize (with a warrant) powers

Police can obtain a warrant to enter and search premises.  The police may also search a person at those premises.  Their ability to do so is limited to the extent stipulated in the warrant.  Police must also only seize items mentioned in the search warrant and other things that they have reasonable belief relate to an offence.

The police can use reasonable force to enter premises for which they have a search warrant. That includes breaking down doors if not answered in a reasonable time.  That isn’t to say that enough time will be given for the door to be answered if an officer knocks or rings the doorbell first. This often results in considerable damage to a person’s home and complete loss of security of their dwelling after the search.

It is an offence to obstruct or hinder the police officers in the execution of a search warrant.  Pets may also be subdued if they obstruct or hinder the officer in their search of premises or person.

Police misuse of powers

The new police powers as part of the DSPO remove normal protections for police to stop, detain and search or enter private premises and search, for convicted drug dealers. That extends over an excessive period of 10 years from the date of the offence.  It also extends to cases of deemed supply and could extend to a person that was a juvenile at the time of the offence.

What’s more is that the police can enter premises at any time, using force to do so.  Should the entry and search be unlawful due to there being no grounds for ‘reasonable suspicion’ there is very little that the person can do about it.  Evidence collected cannot be used in court but that doesn’t stop police from entering a person’s home and disrupting their lives, often and at any time.

The ability of the NSW police to fairly and properly use their discretion in implementing such powers is questionable at best.  The misuse of powers aimed at disrupting organised crime groups has already been seen recently following the review of the implementation of new habitual consorting laws.

Anti-consorting laws make it an offence to interact with two or more convicted criminals after receiving a warning from the police.   The laws were passed to target criminal motorcycle groups, however, since they were passed, statistics have shown their implementation to have a bias toward targeting Aboriginal people, young people and the homeless.

Drug supply offences NSW

Read about the various drug supply offences in NSW including penalties and defences.

For first-time drug offences, you might also like to read or “First-time drug supply offence and drug supply sentencing guidelines” article.

Australian Criminal Law Group

Australian Criminal Law Group is the leading law firm in NSW for drug-related offences.  Home to the best drug defence lawyers, with offices in Sydney, Parramatta and Blacktown, our lawyers represent clients across all drug matters in all courts across NSW.

Get in touch with us on 02 8815 8167 or send us a website enquiry.

 

Sources:

Law Enforcement (Powers and Responsibilities) Act 2002 No 103, Current version for 13 April 2022 to date (accessed 18 May 2022 at 15:38)  https://legislation.nsw.gov.au/view/html/inforce/current/act-2002-103#pt.5

 

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