The Law Handbook 2024

178 SECTION 3: Fines, infringements and criminal law to possession of drugs contained in section 82 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). A police officer can lawfully search the body, clothing and property in the immediate possession of a person arrested, if such a search is reasonably believed to be necessary either: • for the purpose of discovering a concealed weapon or any article that might be used by the person to injure themself or used by others to assist the person to escape; or • to secure or preserve evidence with respect to the offence for which the person is in custody. Within this context, such searches should be confined to ‘frisk’ or ‘pat-down’ searches and not be extended to more intrusive searches of the body. A pat-down search may involve a person being required to empty their pockets, submit to an external pat-down, remove headgear, shoes, socks and outer clothing for examination and have handbags searched. It does not involve the removal of inner clothing. Strip searches The common law police power to conduct a ‘safety and evidence search’ following arrest includes the power to require a person to remove their clothing, if the circumstances require it. However, searches involving the removal of underwear should be rare (see DPP v Tupper [2018] VSC 285). The Chief Commissioner of the Victorian Police has issued instructions setting out the policy and powers governing searches by police officers: Search of a person – a procedure for the discovery of evidence, concealed weapons or other articles with which the person being searched may cause mischief, e.g. injury, damage or to effect an escape. ( Victoria Police Manual , operations 105–1: searches of persons) Full searches These are defined as those that involve the removal and examination of clothing, but should not generally involve physical touching of the body and should not involve the external physical examination of body cavities by touching a person’s body. The conduct of full searches is limited to situations where prior express authority of an officer has been obtained, or without authority in the case of an urgent or serious situation. All searches, including initial pat-down searches , must now be recorded on the Patrol Duty Return or in the police officer’s notebook or Official Diary, and all persons to be searched must be informed of the reasons for the search. There are additional requirements for conducting and recording full searches and consensual searches . If reasonably practical, a person must be searched by a police officer of the same sex. Every search must be conducted with due consideration for the privacy, dignity, modesty and rights of the person concerned. Police are not to forcibly remove rings, earrings, studs, etc. that are not suspected to be stolen property. The Chief Commissioner requires police officers to conduct all searches in a way that limits the person’s loss of privacy and indignity. This position reflects the common law set out in DPP v Tupper [2018] VSC 285. Personal search (on arrest) for Commonwealth offences Body searches are divided into three categories: • frisk search : quickly running the hands over the suspect’s outer clothes and examining anything worn or carried by the suspect that they agree to remove; • ordinary search : search of a suspect, or articles in the suspect’s possession, which may include requiring the suspect to remove any coat, jacket, gloves, shoes or hat so that such articles can be examined; and • strip search : search requiring the suspect to remove all their clothes and an examination of the person’s body (but not body cavities) and clothes. A frisk search may be conducted on arrest if police reasonably believe it would be prudent to find out whether the suspect is carrying any ‘seizable item’ (anything that could present a danger or might be used by the suspect to assist with an escape) (s 3ZE Crimes Act (Cth)). An ordinary search may be conducted either (ss 3ZF–3ZH Crimes Act (Cth)): • once a suspect is arrested, if police reasonably believe the suspect is carrying either some evidence in relation to an indictable offence or some ‘seizable item’; or • once a suspect is brought to a police station. A strip search may be conducted (ss 3ZH–3ZI Crimes Act (Cth)): • once a suspect is arrested and brought to a police station, if police reasonably believe the suspect is