15 Aug

Can the police search my car at a Random Breath Test?

The trial division of the Supreme Court was called upon to consider whether police officers at a traffic stop had a lawful power to search a car in the case of R v Morrison [2020] QSCPR 19. The facts of that case are that at about 6.50 pm, a police officer observed the applicant’s car exit the car park of the Aspley Hotel. The officer and his partner decided to pull the applicant over for a licence check and a breath test. As the officer was conducting the breath test he noticed at least 10 small clip-seal bags on the front passenger seat.

Presence of Clip Seal Plastic Bags

Having seen the clip-seal bags, the officer decided to detain the car and its occupant for a search. He conducted a search of the vehicle, while his partner searched the applicant. The officer’s search of thevehicle located illicit drugs. Five of the clip seal bags contained quantities of methylamphetamine ranging from 0.225 grams to 2.275 grams. The total weight of the substances containing methylamphetamine was 6.711 grams.  Six of the clip seal bags contained quantities of MDMA ranging from 0.317 grams to 3.507 grams. The cryovac bag contained 13.961 grams of substance. The total weight of the substances containing MDMA was 23.978 grams.

The power for police to search a motor vehicle without a warrant is contained within the Police Powers and Responsibilities Act 2000. A police officer who reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exist may, do any of the following [Section 31(1)]. — 

  1. stop a vehicle; 
  2. detain a vehicle and the occupants of the vehicle; 
  3. search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are .

Reasonable Suspicion

In Morrison, His Honour, Justice Applegarth was not persuaded that the mere observation of clip seal plastic bags on the passenger seat was sufficient to ground a reasonable suspicion that drugs were in the vehicle.

The ubiquitous use of clip-seal bags by methamphetamine users and drug dealers does not make it reasonable to suspect that most people with unused clip-seal bags in their cars are in possession of dangerous drugs.

Applegarth J, R v Morrison [2020] QSCPR 19 at 25

His Honour held that it may take little in addition to the presence of clip-seal bags to give rise to the required reasonable suspicion. Matters such as:

  1. The appearance and the demeanour of the motorist;
  2. Roadside or other inquiries that reveal a criminal history or criminal intelligence which links the person to drug use; or
  3. The presence of the person at or leaving a place known to be a location at which drug deals happen.

Discretion to exclude evidence

Justice Applegarth concluded that, the officer’s suspicion was not based on grounds that were reasonable in the circumstances. Accordingly the search was not authorised by s 31(1)(c) of the Act. Having determined that the search of the motor vehicle was unlawful the court was then required to exercise its discretion to determine whether the evidence should be excluded. In considering this issue the Court looked at the following features:

  1. whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance with the law;
  2. the cogency of the evidence and whether the nature of the illegality affects the cogency of the evidence so obtained;
  3. the importance of the evidence in the proceeding
  4.  the nature and seriousness of the offence;
  5.  the nature of the unlawful conduct;
  6. whether such conduct is encouraged or tolerated by those in higher authority in the police force; and
  7. how easy it would have been to comply with the law.

In the end result the Court found that the police acted in good faith. They honestly believed there were sufficient grounds to search the car and did not act in reckless disregard of the law. The relevant factors, when balanced, strongly supported the admission of the evidence. and the Court declined to exclude the evidence.


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