Criminal Law - Drugs: Police Sniffer Dogs: Part 1

The dogs have been let loose recently. Numerous people have been charged generally involving small amounts of cannabis and MDMA (ecstasy) as a result of over active Labradors at pubs, parties and big days out. A client who recently contacted me was apprehended walking to a dance party in the Botanical Gardens. She had in her possession, 1 joint and 1 pill. The dogs detected her and she foolishly threw away a cigarette pack containing the joint in sight of the police. As the detective was taking her 1 pill and issuing her with a court attendance notice, he blithely noted that he hoped a friend could give her a pill inside the party. Such is the hypocritical operation of drug laws in New South Wales.

What are your rights when a member of the canine constabulary shows you particular attention? The police have no power at common law to search someone prior to arrest. If you are arrested, the police can and will search you and ask you to empty your pockets and go through your clothing. Most minor drug offences are not situations where arrest would normally be appropriate.

Legislation gives the police power to 'stop search and detain' if they form a reasonable suspicion that you have committed a drug possession offence. A 'reasonable suspicion' involves less than a belief but more than a possibility. There must be some factual basis for the suspicion; reasonable suspicion is not arbitrary.

For minor drug offences the issue is what is a reasonable suspicion and how do the police get their hands lawfully into your pockets. Drug detector dogs are a relatively recent phenomenon on the streets of Sydney and for the police a very useful investigatory tool. A recent Supreme Court decision noted Rocky's (the drug detector dog) 'nostrils will flare and he will start to sniff rapidly and he will follow the source of the scent until he has found it.'

To what extent can the police rely on an agitated Labrador trained in drug detection to justify a search? The matter was considered by the supreme Court of NSW in 2004 in Darby's case. The Supreme Court cast doubt on the legitimacy of the use of police dogs to routinely justify searches. The court also pointed out that having an agitated Labrador jump all over you could constitute an assault and an illegal search. The court nevertheless did not state that drug dogs cannot assist a police officer in forming a reasonable belief that an offence has been committed.