QLD Positive for thc swab test, how to fight it and is it reasonable suspicion to search

[Joshbuck]

My brother was driving me yesterday and he was randomly pulled over, we were not told why.
He was breathalysed and drug swab tested, it was positive for thc.
The officer then tells us he has reasonable suspicion to search the car my brother and myself, at first he would not tell me what that reasonable suspicion was.

I’m clean so I had nothing to worry about but I said I do not consent to any searches because I’m positive my rights were being violated.
I’m not sure if my brother testing positive for thc on a roadside swab is enough for reasonable suspicion to search him, but my simply being his passenger surely isn’t reasonable suspicion to search myself?

After finding nothing in the car or my brother and myself he finally told me his reasonable suspicion was my brother’s test being positive for thc and that he was “bouncing his knee” I am not kidding.

My brother admitted to having smoked a joint 2 nights past even before the swab test. I believe him and it’s likely he hadn’t brushed his teeth in that time :/
I’ve looked into it and apparently that can give a false positive, because I know he wasn’t under the influence at all.

How does my brother fight this?
Was the search illegal and if so can I complain and if I do would anything come of it?
Or would I just be pulled over and harassed for trying to get a cop in trouble for violating my rights?

 

[Scruff]

A positive swab is enough grounds for reasonable suspicion that an occupant in the vehicle may be in possession. The Police therefore had valid grounds to search both the vehicle and all occupants.

In regard to fighting the swab test, I think to have any chance, he probably would have needed to request a blood test when he returned the positive swab. It's too late to do that now.

 

[Joshbuck]

A positive swab is enough grounds for reasonable suspicion that an occupant in the vehicle may be in possession. The Police therefore had valid grounds to search both the vehicle and all occupants.

In regard to fighting the swab test, I think to have any chance, he probably would have needed to request a blood test when he returned the positive swab. It's too late to do that now.

Oh... I knew that too, it completely slipped my mind, how disappointing. Okay thanks for your help.

 

[Joshbuck]

A positive swab is enough grounds for reasonable suspicion that an occupant in the vehicle may be in possession. The Police therefore had valid grounds to search both the vehicle and all occupants.

In regard to fighting the swab test, I think to have any chance, he probably would have needed to request a blood test when he returned the positive swab. It's too late to do that now.

Hey Scruff, just hypothetically, what if there wasn’t any reasonable suspicion and I did simply get illegally searched, how would you go about reporting the incident?
Should I speak with the sergeant-on-duty or go straight to the Crime and Corruption Commission?

I just expect it to happen now that I’m known to be “associated” with someone who smokes marijuana like my brother.
If I ever am illegally searched I intend to set things straight.

 

[Joshbuck]

A positive swab is enough grounds for reasonable suspicion that an occupant in the vehicle may be in possession. The Police therefore had valid grounds to search both the vehicle and all occupants.

In regard to fighting the swab test, I think to have any chance, he probably would have needed to request a blood test when he returned the positive swab. It's too late to do that now.

Hey Scruff, just hypothetically, what if there wasn’t any reasonable suspicion and I did simply get illegally searched, how would you go about reporting the incident?
Should I speak with the sergeant-on-duty or go straight to the Crime and Corruption Commission?

I just expect it to happen now that I’m known to be “associated” with someone who smokes marijuana like my brother.
If I ever am illegally searched I intend to set things straight.

 

[Scruff]

Well that's the problem isn't it. If you're with someone who is known to take drugs, then there's reasonable grounds to search them and anyone with them. So the problem is "what constitutes an illegal search?" As long as the Police have reasonable suspicion, even if it's based solely on who you're associating with at the time, then they have to power to stop and search.

If something happens and you feel that the Police over step the line, then I would recommend contacting the Commission. Personally, I don't believe that complaints about Police conduct should ever be investigated in-house. At the very least, these things should be handled by senior officers from another command or preferably, by an independent body.

Just don't forget that if you hang with people who do illegal things, than this kind of thing can and will happen. Just because you don't take drugs yourself, doesn't mean that you can avoid being searched or that a search is groundless and/or illegal. The Police are simply doing their job.