Monday, 28 January 2013

Nose for crime or just bad scents? Drug dogs and the search-or-sniff dichotomy

Last year, one of our readers sent me an article about one of two pending appeals in the Supreme Court of the United States about the use of drug-dogs and the admissibility of searches and seizures based on drug-dog indications.

The two appeals are Florida v Jardines and Florida v Harris. An overview of the cases is here, and in the New York Times here.

(Those links will take you to the first-rate Supreme Court of the United States, or SCOTUS blog. I live in hope that one day there will such a resource here in this country to tell us all of appeals lodged in our superior courts, discussing their issues and arguments and tracking their progress. Until then, an excellent alternative is LawGeekDownUnder.)

In essence, both cases consider if the use of police sniffer-dogs contravenes the US Constitution's Fourth Amendment right to privacy and protections from search warrants obtained without probable cause. That broadly — though not precisely — correlates to Charter of Human Rights and Responsibilities Act 2006 s 13. The argument centres on whether an indication of drugs purportedly provided by a drug-detecting dog provides probably cause for search.

The US Supreme Court has touched on this use of sniffer-dogs in United States v Place, 462 US 696 (1983), where it held that the use of sniffer-dog to detect drugs in an airline passenger's baggage was not a search contrary to the Fourth Amendment.

It will be interesting to see how the current US Supreme Court decides these appeals.

The Supreme Court of Canada is also considering the same issue, in two cases I've been watching for the last 12 months as they wend their way through the appeal steps there. The cases are Chehil v The Queen and MacKenzie v The Queen.

Apparently, MacKenzie was stopped for speeding. The police suspected he was in possession of a controlled substance. They conducted a sniff search with a sniffer dog and found marijuana in the boot of his car. The appeal is, apparently, about whether the police had reasonable grounds to suspect MacKenzie had drugs.

Chehil was travelling on a one-way plane ticket from Vancouver to Halifax. He paid cash for the ticket, and had only one relatively new suitcase. The police got a sniffer dog to check it out, and the dog identified narcotics, but also wrongly identified a cooler as containing drugs. When Chehil collected his suitcase from the baggage carousel, the police arrested him for possession of a controlled substance, and then opened the suitcase and found a knapsack containing 3 kg of cocaine. The trial judge found the search infringed Charter ss 7, 8 and 9 and excluded the evidence.

Two recent Canadian cases suggest those appeals are likely to find for exclusion of the searches.

R v A.M., [2008] 1 SCR 569 considered the use of a sniffer-dog at a high school. The principal invited the police to search for drugs, but the police had no knowledge drugs were present and could not have sought a warrant to search for drugs. The dog indicated drugs in a bag in the gymnasium, and the police opened it and found drugs. The Court upheld the accused's acquittal on the grounds the dog-sniff was a search within s 8 of the Charter and should be excluded under s 24(2).

And R v Kang-Brown, [2008] 1 SCR 456 had a similar result. In that case, an RCMP officer saw a bus passenger behaving in a way he considered suspicious, and signalled another officer with a sniffer-dog to approach. The dog indicated drugs; the accused was arrested; his bag searched, and the police found drugs in the bag and on the accused. The Court held the sniff was a search within s 8, and violated s 8.

(As an aside, two other North American cases considering related issues muddy the waters a little.

In R v Gomboc, [2010] 3 SCR 211 the Supreme Court of Canada restored the conviction of an accused who successfully appealed his narcotics cultivation conviction at trial. The police relied in part on information from a digital recording ammeter (DRA) which measured and recorded electricity flowing in to a house, consistent with growing marijuana. Based on that and other information, the police successfully applied for a search warrant. The majority of the Court held that DRA revealed nothing about the intimate or core person activities of the occupants; all it showed was the consumption of electricity. This wasn't the sort of information protected by s 8 of the Charter.

And in R v Tessling, [2004] 3 S.C.R. 432 and Kyllo v United States 533 US 27 (2001) the Canadian and USA Supreme Courts respectively considered the admissibility of the results of infra-red imaging used to identify marijuana crops grown with the aid of high-wattage lamps.

The US Supreme Court held this was a search contrary to the Fourth Amendment; but the Canadian Supreme Court held it was a form of external surveillance and so not a trespassory breach of privacy. That approach was expressly rejected by the US Supreme Court majority, but followed by the dissenters.)

Here in Australia, the law seems to be a little less ambiguous, but, there have been no appellate cases considering the point in Victoria since the commencement of our Charter.

Victoria has no express legislation dealing with the point, unlike NSW's Law Enforcement (Powers and Responsibilities) Act 2002 Part 11, Div 2 and Qld's Police Powers and Responsibilities Act 2000 Chapter 2, Part 3.

But so far, even without express legislative authority for the use of sniffer dogs, it seems that sniffs are not searches under the common law: Darby v DPP (2004) 61 NSWLR 558; Question of Law Reserved (No 3 of 1998) (1998) 71 SASR 223.

If the US or Canadian appeals conclude that dog sniffs are searches — and it seems the Canadian Supreme Court at least will continue with its previous decisions on the point — it should provide fertile grounds for challenging the use of sniffer-dogs in Victoria under our Charter. Stay tuned for when the appeals are decided...


Jeremy Gans said...

FWIW, I looked at the legality of sniffer dogs under the Charter in my old charterblog days:

Kyle said...

Hi Jeremy. Thanks for that. I take great comfort from seeing that your research led you to the same cases as me (aside, of course, from the ones decided since your post).

I'm curious to see how the US Supreme Court will handle its cases; I reckon the Canadian ones are a foregone conclusion and will just follow the existing cases. (Which begs the question, why are they considering those fresh appeals?)

I don't know how receptive domestic courts will be to such arguments though, but it might that any new US consideration on the point is persuasive.

Jeremy Gans said...

I suspect the Canadian cases are about the meaning of 'reasonable suspicion'. The 2008 cases didn't really resolve that issue, because of the complex split in the court on the law and facts. (In the only case where the issue was open to dispute, Kang-Brown, only four judges actually applied what emerged as the test - the 'reasonable suspicion' test - and they split 2-2 on its application.)

More grimly, this may also provide an opportunity for the Court to change its mind (as its membership has changed since 2008.)