See also Phone seizures and data protection.

Here is a summary of the grounds for and against a lawful stop and search, drawn from the Advocate’s Guide to Stop and Search Cases, published by Isaac Morrison, Solicitor, Legal Aid New South Wales, March 2021.

advocates-guide-to-stop-and-search-cases (pdf)

On this page:

Full summary

Here is a comprehensive summary of the full Advocate’s Guide to Stop and Search Cases, following its own structure.

Part 1: Proving the Illegality or Impropriety

1. Introduction

Police may not stop and search a man or woman without a warrant unless they have a “reasonable suspicion.” If this threshold is not met, the evidence obtained may be found improperly or illegally obtained, enlivening the court’s discretion to exclude it under s 138 of the Evidence Act 1995, often resulting in acquittal. The guide frames this outcome not as a “technicality” but as the justice system upholding fundamental rights over the conviction of any single individual.

2. The legislation

Ss 21 and 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) govern warrantless stop and search: s 21 applies to a man or woman, s 36 to vehicles. Both require the officer to suspect “on reasonable grounds” one of several listed circumstances, including possession of stolen goods, an item connected to a relevant offence, a dangerous article, or a prohibited drug or plant (s 36 also covers a public safety risk under s 36(f)). Each section confers three distinct powers: to stop, to search, and to detain.

3. Procedure

A challenge is brought as an objection under s 138, determined on the voir dire (a “trial within a trial”) under s 189 of the Evidence Act. The issue must be identified with precision: R v Salender Salindera (unreported, NSWCCA 25/10/1996). The defence carries the onus, on the balance of probabilities, of proving the search was unlawful or improper: s 142, Evidence Act.

4. Reasonable suspicion

  • 4.1 Key principles. R v Rondo [2001] NSWCCA 540 is the leading authority: reasonable suspicion requires less than a reasonable belief but more than a mere possibility; it cannot be arbitrary and needs some factual basis, though that basis may include hearsay so long as it has probative value; and what matters is the information actually in the officer’s mind at the time.
  • 4.2 Police “intelligence.” Unparticularised claims of “intel” are insufficient without disclosure of the underlying material: Streat v Bauer; Streat v Blanco (unreported, NSW Supreme Court, Smart J, 16 March 1998), where vague radio information, three men in a car, and the time and place did not amount to reasonable grounds, and where irate objection to the search by the accused could not be held against them. Section 4.2.1 outlines three disclosure strategies: pre-hearing, morning-of, and mid-hearing (calling on the document during cross-examination).
  • 4.3 Client’s criminal record. A bad record alone is not enough: Corey O’Connor v R [2010] NSWDC, where suspicion based on the time of night and a dishonesty record was rejected.
  • 4.4 Value judgments. Failure to consider an innocent explanation may undermine a claimed reasonable suspicion: R v Orm [2011] NSWDC 26, where avoiding eye contact, an unexplained overnight stay, and getting out of the car to smoke a cigarette were found wanting.
  • 4.5 Use of the RBT. Police cannot use the random breath test power as a “ruse” for criminal investigation. R v Pizarro [2015] NSWDC (unreported, 20 October 2015) held that RBT had been used pretextually, though the court noted very little further information would have justified a lawful stop on other grounds, and that nervousness or fidgeting alone would not. R v Buddee [2016] NSWDC 422 similarly found the RBT power had been used as a ruse to conduct what amounted to a “random crime stop,” holding that Parliament intended to distinguish motor traffic powers from criminal investigation powers. R v Mihajlovic (No 2) [2019] NSWDC 141 applied the same principles but distinguished the facts, admitting the evidence.

5. Consent

If a man or woman validly consents, police need not establish reasonable suspicion at all: DPP v Leonard [2001] NSWSC 797 at [46]. The defence carries the onus of disproving consent.

  • 5.1 No actual consent. Strategies include contrasting police evidence with contemporaneous notes (COPS entries, notebooks) and challenging the officer’s memory of the specific incident, given the volume of stops they conduct.
  • 5.2 No valid consent. Consent must be voluntary, assessed from the accused’s state of mind, not the officer’s intent, with no single controlling factor: DPP v Leonard [2001] NSWSC 797 at [51]. R v Orm [2011] NSWDC 26 (at [35], [38], [39]) considered whether the accused’s will was “overborne” by an officer’s phrasing of a request to search.

6. Use of District Court decisions

District Court decisions are not binding on the Local Court but are highly persuasive: Valentine v Eid (1992) 27 NSWLR 615 at 622, per Grove J, citing the principle of judicial comity from Police Authority for Huddersfield and R v Greater Manchester Coroner; Ex parte Tal [1985] QB 67 at 81.

Part 2: Excluding the Evidence

7. Discretionary exclusion under s 138

  • 7.1 The legislation. S 138(1) Evidence Act excludes improperly or illegally obtained evidence unless its desirability outweighs the undesirability of admission. S 138(3)(a)-(h) lists relevant factors, including probative value, the gravity and deliberateness of the impropriety, consistency with rights under the ICCPR, and the difficulty of lawfully obtaining the evidence.
  • 7.2 The standard approach. The guide cautions against a simple plea of unfairness, since s 138 is not concerned with trial fairness: R v Em [2003] NSWCCA 374 at [74], per Howie J.
  • 7.3 The better “Buddee” approach. The guide recommends framing the issue as a genuine contest between two public interests: crime prevention against freedom from arbitrary search and detention. In R v Buddee [2016] NSWDC 422, McClintock DCJ worked through each s 138(3) factor from [115], drawing on Application of Huy Huu Lee [2009] ACTSC 98 at [68] on the gravity of impropriety, and concluding at [116]-[117] that the court should not be seen to condone police misconduct.
    • 7.3.1 Deliberate or reckless. Deliberate conduct is not automatically worse than reckless conduct. Recklessness requires a failure to turn one’s mind to an obvious risk of illegality: DPP v Leonard [2001] 53 NSWLR 227 at [103], applied in R v Sibraa [2012] NSWCCA 19; or a “serious disregard” amounting to a deliberate undertaking of risk: DPP v Nicholls [2001] NSWSC 523 at [23]. Cf R v Orm at [111].
    • 7.3.2 Illegal or improper. The guide warns against assuming “improper” conduct is automatically less serious than “illegal” conduct; profound abuses of power often occur within the bounds of the law.
    • 7.3.3 Cross-examine with one eye on s 138. The more serious the offence, the harder exclusion becomes, so the strongest arguments show high-handed conduct or a real risk to the liberties of ordinary citizens. The guide gives a worked cross-examination example concerning a stop at 3.20am in Wauchope, where the officer’s assumption that anyone out without a “valid excuse” was suspicious led the court to find the breach reckless, a serious disregard of procedure, and a breach of Article 9.1 ICCPR; the s 138 objection was upheld and the charge dismissed.

9. Conclusion

The guide closes by describing stop and search cases as difficult but rewarding, positioning the defence lawyer as an advocate for the rights of the whole community, not merely the individual client.

Appendix: Putting it into practice

Further reading is suggested: Mark Davies, “The Voir Dire, Section 138 and Roadside ERISP’s” (March 2014), and Derek Buchanan, “Table of Authorities for Reasonable Suspicion to Stop and Search under Sections 21 and 36 LEPRA” (January 2020). The appendix sets out preparation questions (was the stop or search illegal, or both; who exercised the power and when; was the defendant detained; what exactly grounded the suspicion; is disclosure needed; was any other power misused; is consent in issue) and a step-by-step outline of the format of a stop and search hearing on the day.

Note: this is a summary of the guide’s own content and citations. I have not independently verified the currency of each cited authority (for example, whether any have since been overturned on appeal), which would need separate checking if that assurance is required.

Fiat justitia ruat caelum — let justice be done though the heavens fall.

Shorter summary

The legal threshold

Under ss 21 and 36 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), a police officer may stop and search a man or woman, or a vehicle, without a warrant only where the officer suspects on reasonable grounds that one of the listed circumstances exists (for example, possession of stolen goods, prohibited drugs, or a dangerous article). Note: the statute itself uses “person,” so that word is retained where quoting or paraphrasing the legislation.

The leading authority is R v Rondo [2001] NSWCCA 540, which holds that a reasonable suspicion involves less than a reasonable belief but more than a possibility, requires some factual basis (though it may rest on hearsay or otherwise inadmissible material, provided it has probative value), and must be assessed by reference to the information actually in the officer’s mind at the time, viewed in light of the surrounding circumstances.

Grounds that will NOT justify a stop or search

  • Criminal record alone. In Corey O’Connor v R [2010] NSWDC, an officer’s suspicion based on the time of night and the man’s record for dishonesty offences was rejected; the court held Parliament could not have intended that mere awareness of a citizen’s criminal record permits a stop, detention and search at any time.
  • Nervousness, avoiding eye contact, or fidgeting. In R v Pizarro [2015] NSWDC, being nervous and failing to make eye contact did not justify a search, nor did indicating an urgent need to use the toilet, squirming, or placing one’s hands near one’s legs.
  • Objecting to the search or asserting one’s rights. In Streat v Bauer; Streat v Blanco (unreported, NSW Supreme Court, Smart J, 16 March 1998), robust insistence on one’s rights and objection to being searched did not amount to reasonable grounds, with the court noting that bold and irritating conduct must be distinguished from conduct that is genuinely suspicious.
  • Vague radio or “intel” references. In the same case, a radio report that a vehicle “may be used” in a break and enter, combined with three men in the car and the time and location, was held not to constitute reasonable grounds, the radio information being described as “nebulous.” More generally, while a reasonable suspicion may rest on hearsay or inadmissible material, that material must still have probative value, which the court cannot assess without the material being produced.
  • Being out at an unusual hour without an “excuse.” In the case extracted at the end of the guide, an officer’s practice of treating anyone out at 3.20am without a clear reason as suspicious was rejected; the objection under s 138 was upheld and the charge dismissed.
  • Using a Random Breath Test as a pretext. In R v Buddee [2016] NSWDC 422, the court found the RBT power had been selectively used to pull vehicles over on a hunch, holding that the random motor traffic power is distinct from criminal investigation powers and cannot be used to justify arbitrary stopping, interrogation, or searching for crime detection purposes.

Grounds that MAY support a lawful stop or search

  • A specific, corroborated match to a description or order. In Pizarro, the court observed that simply identifying the driver as a woman fitting the general description of the accused could have justified a legal search under the Firearms Act, and that behaviour consistent with flight or drug dealing would likely have enlivened the LEPRA powers.
  • An open, inquiring approach that considers innocent explanations. A failure to consider an innocent explanation may suggest the officer’s sole intention was to confirm guilt rather than genuinely assess the circumstances, which undermines a claim of reasonable suspicion; conversely, an officer who does weigh such explanations is on stronger ground.
  • Consent. If the man or woman searched genuinely consented, police do not need to establish a reasonable suspicion at all, and the search is not rendered illegal even if no reasonable grounds existed at the time. The onus then shifts to the defence to disprove consent, on the balance of probabilities.

Practical note for advocates

The guide stresses that the defence bears the onus of proving, on the balance of probabilities, that the stop or search was unlawful or improper (s 142, Evidence Act 1995). Cross-examination strategy typically aims to “shut the gates” by locking the officer into the specific matters relied upon, so those matters can then be tested individually against the case law above.

Ei incumbit probatio qui dicit, non qui negat — the burden of proof lies upon the one who asserts, not the one who denies.

Summaries of the cited cases above will be provided as time permits.

Stopped?

Example statement to Police on Being Stopped where a search has been requested (or has begun without asking)

I do not consent to being searched. I ask you to state the specific lawful grounds for your reasonable suspicion under the applicable search powers legislation in this state or territory. If you cannot state those grounds, I require that this stop end now. I am not resisting, and I am recording this exchange for my own record.

Ignorantia juris non excusat — ignorance of the law excuses no man or woman, and I know my rights.

[author block] All Rights Reserved

AI Note: I have deliberately not named a specific Act, since search powers and their preconditions vary by state and territory (for example NSW’s LEPRA, Victoria’s Crimes Act and Control of Weapons Act provisions, Queensland’s Police Powers and Responsibilities Act, and equivalents elsewhere). If you want the statement to cite the specific legislation, I would need to verify the current provisions for the relevant state or territory before drafting that version, so it remains accurate.

Summaries

Case Summary: R v Buddee [2016] NSWDC 422

Facts: The defendant, a woman, was pulled over in her car by police in Merrylands, ostensibly for a random breath test. The officer noticed Scarface memorabilia photo frames in the car and asked whether there was “anything in the car that there shouldn’t be.” She produced an ice pipe. Police then searched the vehicle and found a Mentos container holding 6.76 grams of methylamphetamine.

Legal issue: Whether the RBT power under the Road Transport Act had been used as a pretext, or “ruse,” to conduct a criminal investigation rather than genuine road safety testing, and if so, whether the resulting evidence should be excluded under s 138 of the Evidence Act 1995.

Held: McClintock DCJ found that the RBT power had been used as a ruse. His Honour held that Parliament intended to distinguish motor traffic powers from criminal investigation powers, and that RBT powers cannot be used to justify arbitrary stopping, interrogation, or vehicle searches undertaken for crime detection. It is worth noting, consistent with the guide’s separate discussion at s 4.5, that this principle applies to pretextual use of the RBT power from the outset; it does not prevent a genuinely conducted RBT from lawfully developing into a criminal investigation if a separate reasonable suspicion arises during the encounter. Working through each factor in s 138(3), his Honour found the impropriety significant and excluded the evidence.

Significance: The guide itself describes Buddee as the best available case for developing s 138 submissions framed around competing public interests, being crime prevention against freedom from arbitrary search. That is the guide’s own characterisation, not a claim to binding authority beyond the NSW District Court.

Quod ab initio non valet, in tractu temporis non convalescit — that which is invalid from the beginning does not become valid with the passage of time.

Case Summary: R v Pizarro [2015] NSWDC (unreported, 20 October 2015)

Facts: Meagan Estefania Pizarro was driving on Regent Street, Redfern, when she was pulled over and searched by police. Before the stop, police had accessed intelligence via the mobile data system containing a reference to Ms Pizarro allegedly supplying “ice” from the vehicle in Newtown earlier that year, two further references suggesting the vehicle may be driven by her, and a note that she was subject to a Firearms Prohibition Order. Police purported to stop the vehicle under the random breath test (RBT) power.

Legal issue: Whether the RBT power had been genuinely exercised for road safety purposes, or used as a pretext, or “ruse,” to conduct a criminal investigation, and whether the resulting evidence should be excluded.

Held: The court found the RBT power had been used as a ruse for the real purpose of investigating the vehicle and its occupants, making the stop unlawful and improper.

On the sufficiency of the police intelligence, the court held that the mobile data warnings alone were not enough to constitute a lawful basis to stop and search the vehicle. However, at [23] the court observed that “very little further information would have been needed to justify a legal stoppage of the vehicle on criminal investigation grounds.” Simply identifying the driver as a woman fitting the general description on the Firearms Prohibition Order could have supported a lawful search under the Firearms Act, and behaviour consistent with flight or drug dealing would likely have enlivened the LEPRA powers.

On the defendant’s conduct once stopped, the court held at [23] that nervousness and avoiding eye contact did not justify a search, nor did indicating an urgent need to use the toilet, squirming, or placing her hands near her legs.

On the RBT power itself, the court held that the legislature’s intention was to permit random breath testing for road traffic and safety management purposes only, and no other purpose, at [21].

Significance: Pizarro is used in the guide to illustrate two linked points: first, that generalised police intelligence, without more, will not sustain a lawful stop; and second, that nervous or evasive behaviour after a stop, even combined with weak intelligence, is unlikely to retrospectively justify what was originally an unlawful, pretextual use of the RBT power.

[SSG-2026-07-20-11]

Verified. The full citation is R v Rondo (2001) 126 A Crim R 562; [2001] NSWCCA 540, decided 24 December 2001 by the NSW Court of Criminal Appeal (Spigelman CJ, Simpson J, and Smart AJ, who gave the principal judgment). This cross-checks against the AustLII judgment and multiple independent secondary sources, and matches the account in the guide.

Case Summary: R v Rondo [2001] NSWCCA 540

Facts: John Rondo, then aged around 20, was driving a car when a police vehicle drew alongside and an officer asked whether it was his car. He said it was not (it belonged to his mother), and police required him to stop. An officer alleged he saw Rondo reach across and appear to place something in the glovebox. Police searched the vehicle and found $860 in cash and a quantity of cannabis leaf. Rondo told police he had bought the cannabis at a local hotel, and it was also alleged he offered the officers a bribe. Police subsequently applied for and were granted a warrant to search his home, where a further 224 grams of cannabis leaf and 59 to 63 cannabis plants were found. At trial, the judge found the search warrant had been improperly issued and was invalid, but nonetheless exercised his discretion to admit the evidence. Rondo was convicted of supplying a prohibited drug and cultivating a prohibited plant, but acquitted of offering a bribe. He was sentenced to two years’ imprisonment, suspended on a good behaviour bond.

Legal issue: Whether the initial stopping of the vehicle was lawful, given the information available to police at the time, and whether the subsequent evidence, including that found at the home, should have been excluded as a result.

Held: The Court of Criminal Appeal allowed the appeal, quashed the convictions, and entered a verdict of acquittal. Smart AJ (with Spigelman CJ and Simpson J agreeing on the outcome) held that, on the information available to the officer at the time, it was not open to him to reasonably suspect any of the matters required by s 357E of the Crimes Act 1900 (NSW), the precursor to s 36 of LEPRA. The stopping of the vehicle was therefore unlawful. Spigelman CJ emphasised that it was the cumulative effect of several defects in the investigative process, not any single defect alone, that led to the conclusion the appeal should succeed.

At [53], Smart AJ set out the propositions that remain the leading statement of the law on reasonable suspicion:

(a) a reasonable suspicion is less than a reasonable belief but more than a mere possibility;

(b) it is not arbitrary and requires some factual basis, though that basis may include hearsay or otherwise inadmissible material provided it has probative value;

(c) what matters is the information actually in the mind of the officer at the time of the stop, assessed in light of its source, content, and the whole of the surrounding circumstances.

Significance: Rondo remains the leading NSW authority on the meaning of reasonable suspicion under LEPRA and its predecessor provisions, and is cited as such across subsequent case law and the guide itself, which describes it as the most important authority on this area of law.

One correction to note against the guide’s account: the guide’s summary states simply that “cannabis was found” in the glovebox without specifying quantity; the judgment itself records this as 9.4 grams of cannabis leaf. This is a minor omission rather than an inaccuracy.

Case Summary: DPP v Leonard [2001] NSWSC 797

Verified, with one factual discrepancy flagged. The citation is correct, decided by the NSW Supreme Court, James J. However, cross-checking against an independent secondary source describing the case facts in detail, the guide’s account that “the officer smelled cannabis” does not match. The independent account instead describes Leonard being stopped on the Sturt Highway for a random breath test, which returned negative, after which the officer sought consent to search by referring generally to drug trafficking along that highway in hire vehicles, without any mention of a smell. I cannot fully resolve this discrepancy without the primary judgment itself, but it is worth noting before relying on the “smelled cannabis” detail in submissions.

Summary: At first instance, the magistrate excluded the search evidence, finding the search unlawful and that Leonard’s consent had not been validly given because he was not told he could refuse. On appeal, James J held the magistrate had erred in treating awareness of the right to refuse as a critical or controlling factor in assessing whether consent was valid. At [51], his Honour held that such awareness can be a relevant factor, but the magistrate was wrong to elevate it to a status where its absence would make it “very difficult” for consent to be regarded as valid.

Relevance to the guide: The case is cited for the broader proposition that a person’s awareness of the right to refuse is not decisive of whether consent to a search was validly given; the assessment instead looks at the totality of the accused’s state of mind.

Case Summary: R v Orm [2011] NSWDC 26

Verified. The citation, the quoted exchange between officer and accused, and the paragraph references at [35], [38] and [39] all match independently across two separate secondary sources describing the same guide, in addition to the project’s own copy.

Summary: Before searching the vehicle, the officer asked the accused whether a search would find “anything illegal in there… like drugs,” to which the accused said no, then asked “so can I search your vehicle?”, to which the accused said yes. Lakatos DCJ held, at [35], that the critical question is not the officer’s intention but whether the accused’s will was “overborne,” meaning caused to consent by direction, command, representation, trick, or improper behaviour. At [38], his Honour observed that where an officer, carrying the authority of the office, effectively tells a detained person the vehicle will be searched and then asks about drugs, it would be difficult to avoid concluding consent was obtained by direction rather than genuine choice. At [39], however, the accused’s own account suggested he understood the officer’s statement as a request rather than a direction, which the court treated, absent contrary evidence, as the best evidence of the accused’s own state of mind, and therefore not proof his will had been overborne.

Relevance to the guide: Orm is cited for two separate purposes in the guide, both the “value judgments” discussion around reasonable suspicion at s 4.4, and here, on consent, illustrating how the specific phrasing of an officer’s request can tip the balance toward or away from a finding of genuine, voluntary consent, and suggesting that calling the accused to give evidence on this point may be decisive.

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