Can Police Search You Using a Drug Detection Dog in NSW?

By Poppy Morandin and Jimmy Singh.

 

Sniffer dog operations have reportedly returned following their apparent suspension due to concerns related to the COVID-19 pandemic.

Sniff Off, a Greens campaign for police accountability, drug law reform and civil liberties, regularly reports on sightings of drug dog operations in order to raise the public awareness.

They have recently reported a drug dog presences at Mount Druitt, Central and Blacktown train stations, stating: “Seems like, after a hiatus, Gladys and NSW Police are determined to not let a global pandemic get in the way of harassing and intimidating people.”

The last reported sniffer dog operations were in late March, including at Blacktown station and the North Gong Hotel, at which point restrictions had already been put in place.

Sniff Off noted at the time: “police are still choosing to harass and search people at this time of crisis. This needs to stop.”

David Shoebridge, Greens MP, commented at the time that during the pandemic the police force should seek to: “withdraw from aggressive and overt police tactics, that are clearly inappropriate during a pandemic, and we put searches and drug dog operations at the top of that list.”

Whilst there was no formal statement that operations were suspended, as there was with random roadside breath tests, they were notably absent in the past few months.

According to the NSW Ombudsman, no drugs are found in almost three-quarters of searches conducted following an indication by a sniffer dog, which raises serious concerns as to their accuracy.

Despite this, an almost twentyfold increase of strip searches in less than 12 years has been correlated to the use of drug detection dogs.

“Saturation policing with sniffer dogs at music festivals and railway stations or forcing teenagers to remove their clothes in the back of police vans does not make the community safer,” says UNSW Law Lecturer, Dr Vicki Sentas.

In NSW, the power to use sniffer dogs in public places for the purposes of drug detection was established by the Police Powers (Drug Detection Dogs) Act 2001 (NSW) which was enacted in 2002 and later incorporated into sections 146-148 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

Further amendments of section 148 enabled general drug detection using sniffer dogs in any public place in Kings Cross precinct and across the City Rail train network.

Can Police Search You Using a Drug Detection Dog in NSW?

Short answer is, no. A positive indication by a drug sniffer dog is not sufficient in itself alone to be able to allow a police officer to search you without a warrant.

In NSW, a police officer is allowed to be accompanied by a dog for the purposes of detecting a drug offence provided the dog is under the officer’s control and is in certain premises in order to exercise his/her functions as a police officer. (section 146 and 147 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)).

Under section 148 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), a police officer can use a drug detection dog to detect a drug offence, and can do so to any person at, or seeking to enter or leaving:

  1. Any area of premises being used for consuming alcohol where alcohol is being sold (except for places primarily used as a restaurant or other dining place);
  2. A public place where a sporting event, concert or other artistic performance, dance party, parade or other entertainment is being held;
  3. A public passenger vehicle travelling on a route, or a train station, platform or stopping place on any such route.
  4. Any public place in the Kings Cross precinct.

When a police officer is carrying out such duties with a drug sniffer dog, the officer must take all reasonable precautions to prevent the dog touching a person, and must keep the dog under control, under section 150.

Drug sniffer dogs have been found to target mainly use and possession offences, rather than suppliers, as it is more likely that individuals with minimal amounts will come into contact with drug detection dogs in such settings.

Only 4.8% of all detections are suppliers due to this, creating further questions as to their utility.

“Sniffer dogs should be used to protect the community from harm, I think most people in the community would feel very unsettled about the use of this expensive and time-consuming police resource in public train stations for the sole purpose of detecting small quantities of illicit drugs on passengers in our public transport system.” said Stephen Lawrence, barrister and Deputy Mayor of Dubbo.

“It doesn’t protect the community, and nothing socially useful is achieved by criminalising often young passengers on public transport for the possession of a tenner of cannabis. It’s a misallocation of police resources, in my view.” he further explained.

It is estimated that sniffer dog operations costs NSW more than $9 million per year.

Use of a drug detection dog is not considered a search under the law.

Before a police officer is allowed to conduct a search on a person without a warrant, the officer is required to have first formed a ‘reasonable suspicion’ which is a suspicion based on reasonable grounds that the person has something in his/her possession, that relates to an offence such as prohibited drugs as outlined in section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

The only other way a police officer may search a person is if the person provides consent or where there is a valid warrant.

The NSW Police Standard Operating Procedure manual provides that a positive drug dog indication alone does not constitute ‘reasonable grounds’ to allow a police officer to search a person. Before a search can take place even after a drug sniffer dog gives a positive indication, the officer must pursue further investigations. These investigations can incudes making observations and asking questions, the result of which may or may not amount to the basis to then search, depending on the evidence.

Despite emphasising this point, the law on this is often ignored or misunderstood by officers and public, leading to a prevalence of searches which do not adhere to procedures.

Forming a reasonable grounds for suspicion involves the consideration of less than a belief but more than a possibility, the existence of some factual basis as found in the case of Rondo [2001] NSWCCA 540.

What happens if the police end up doing an illegal search? The evidence obtain thereafter can be ‘thrown out’. This means that the evidence is not allowed to be used in court against the accused person, which can result in an acquittal.

Have questions on drug law? Call our Sydney drug lawyers for a free initial consult today.

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