By Frank Egan – LAC Lawyers
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.
On 22 February 2002, the NSW Parliament enacted the Police Power (Drug Detection Dogs) Act (The Drug Dog Act). The Drug Dog Act continues to allow police to use drug dogs to search an individual once they have formed a reasonable suspicion that an offence has been committed. The Act also gives police wide powers to enter venues and screen persons for drugs with the aid of drug dogs.
The Act provides the police with the power to enter premises and undertake ‘general drug detection’. The police may enter without a warrant any licensed premises, a sporting event, concert or artistic performance, dance part, parade and public transport facilities with a drug detector dog. The definition includes persons seeking to enter or leave any of the above. Accordingly on the train, at the pub and at the footy, the police can put the dogs over you while you are entering and leaving. Any drug detection work conducted by the police outside of this very wide definition requires a warrant.
The issue of what will form a reasonable suspicion is still left to the courts and the Drug Dog Act does not empower the police to arbitrarily search persons. The Act gets the police into venues and gives them the opportunity to screen people. The reaction of a drug dog alone likely does not amount to a reasonable suspicion. The police are told not to rely solely on the reaction of the drug detection dog and observe very closely the reaction of the person subject to screening. If a person bolts, starts walking the other way or discards a cigarette package when detection dog’s nostrils flare in their direction this can empower a police officer to search and detain the individual.
A word of warning! You have rights and the law does provide you with some protection but you should not argue with police. It is an offence to tell a police officer to get f…ked, hinder a police officer and assault a police officer. Police routinely arrest persons for these offences. Be cooperative, do not say anything other than your name and your address and get legal advice if you are charged. There is a time and a place to challenge the police and this is at court with your lawyer. The courts will exclude evidence illegally obtained and the prosecution will fail as a result.
Most importantly stay calm. What will give you away is your behaviour. It is likely that you are not the only person at the big day out who has the smell of cannabis on their clothing. The police will generally not search and detain someone unless they give them some real reason to do so. Do not make it hard on yourself, so stay calm if and when approached and ask are you being arrested; if yes call us!
About the Author: Frank Egan is the Chief Executive Officer of LAC Criminal Lawyers Sydney and has over 27 years of experience as a lawyer.
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