A Drug Dog Indication Isn’t Sufficient to Justify a Search

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These days, spotting police officers accompanied by a sniffer dog when leaving a train station, leads Sydneysiders to hardly blink an eyelid. Though some commuters will curse under their breath about the incursion upon their civil liberties the warrantless use of drug dogs in public involves.

While others will stop and take a photo of the drug dog, which they’ll then send on to the Sniff Off Facebook page, so the admin can create a post warning other citizens about the presence of the sniffer dog at the station, which is more likely to be Redfern, than, say, Wollstonecraft station.

But, so ingrained in our everyday lives is the use of drug dogs that many of us forget that not so long ago, this unnecessary invasion of our privacy wasn’t a feature of this city. Indeed, NSW police only started utilising drug canines in the lead up to the 2000 Sydney Olympics.

And just like many police powers, if they’re misapplied – which they often are – the unsuspecting public is not usually well enough informed to object to how officers use these laws, especially when they’re dealing with an armed and uniformed authority figure, who can threaten their liberty.

That’s why the Redfern Legal Centre recently appealed to the NSW Civil and Administrative Tribunal to order NSW Police to release its full drug dog standard operating procedures (SOPs), so a better informed public can understand its rights and those of police, when it comes to these operations.

Indications alone don’t warrant a search

The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) contains most of the powers NSW police possess when carrying out its duties. Also known as the LEPRA, sections 145 through to 150 of the legislation, specifically deal with the use of drug detection dogs.

The LEPRA stipulates that for an officer to search someone, they must suspect on reasonable grounds some sort of wrongdoing. The common law authority on reasonable suspicion outlines it must involve “less than a reasonable belief but more than a possibility”, and “some factual basis”.

The now released NSW Police Force Drug Detection Dog Deployment Standard Operating Procedure manual explains that a sniffer dog will indicate if it has picked up the presence of an illicit substance in the air space around a person by sitting down next to them.

The police SOPs stress that a dog indication alone doesn’t constitute reasonable grounds to search a person. In fact, it advises officers that they must carry out further investigations, questioning or observations that can then determine a reasonable suspicion to search the indicated person.

The largest misconception around the drug dog program is that an indication alone does warrant a search. Many citizens hold this mistaken belief and unfortunately, anecdotal evidence suggests a lot of police officers operate under this misguided assumption as well.

After warning that an indication isn’t reasonable grounds for a search, the manual also explains that officers conducting one must preserve “a person’s privacy by removing them from areas which are in public view”. And if no drugs are found, the person doesn’t have to supply their details.

Dogs can’t traipse through cars

When police set out to conduct a general drug dog operation in an “open” public area, they’re required to obtain a warrant under section 149 of the LEPRA. And these warrants allow officers to carry out sniffer dog operations for up to 72 hours.

But, the manual also warns officers that while they may have a warrant to use a drug dog in a public area, this doesn’t allow them to place the sniffer dog in a motor vehicle that’s in the vicinity, as the interior of a motor vehicle is not deemed a public place.

“lf a drug detection dog does indicate the scent of a prohibited drug from the outside of a vehicle, the dog handler would inform the support police who will make further enquires,” the SOPs manual sets out. “The decision to search inside that vehicle rests with the support police.”

Incidentally, in regard to the support police, the manual explains that as the safety of a dog handler and a canine are paramount, they should be accompanied by six other officers when in the field. And in the case of dance parties at least ten extra support police are required to be on hand.

A few other tips for officers

Section 148 of the LEPRA explains where police can carry out drug dog operations. This includes in an around licensed premises, at sporting events, concerts, dance parties and music festivals, as well as at entrances to public transport, tattoo parlours and in the Kings Cross precinct.

The standard operating procedures warn police that due to negative opinions about such searches, they should act professionally if “semi-organised protests” break out. And officers should also be aware that they may be filmed when conducting a search without their consent or awareness.

In cases where police do turn up prescription drugs, they’re reminded that legitimate users of such substances aren’t required to carry a prescription around with them, so thorough enquires should be carried out prior to confiscating of any such pharmaceuticals.

Get sniffed

Figures obtained by NSW Greens MLC David Shoebridge show that in the 12 months to June this year, NSW police carried out “11,533 searches following a drug dog indication and failed to find any drugs” in 8,776 of these searches. That equates to nothing being found 76 percent of the time.

Shoebridge and the NSW Young Greens have tracked these statistics going back as far as 2009, and they reveal the dogs consistently get it wrong between two-thirds to three-quarters of the time. And that’s why their joint venture, the Sniff Off campaign, is calling for an end to these operations.

The Redfern Legal Centre’s head of police accountability practice Samantha Lee is also a harsh critic of NSW police drug dog operations. And she’s been raising concerns around poorly trained officers taking a dog indication as reasonable grounds to conduct a strip search.

“Redfern Legal Centre has lodged a number of complaints for clients who were taken from a drug dog indication to a full body strip search,” Ms Lee said at the time she released the SOPs to the public. “Such searches may have been unlawful and completely unnecessary.”

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About Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on civil rights, drug law reform, gender and Indigenous issues. Along with Sydney Criminal Lawyers®, he writes for VICE and is the former news editor at Sydney’s City Hub.

One Comment

  1. Gary

    Interesting, thankyou.
    Do you know anyone who does similar work as you who is familiar with Victorian laws.?
    Thankyou.
    Regards, gary

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