Can I Be Searched if a Sniffer Dog Sits Next to Me?

If you’ve ever attended a music festival or regularly walked through a train station or airport, chances are you’ve probably been sniffed down by a drug detection dog.

For most people, having a sniffer dog walked past by their police handler is no big deal.

The law says that police are allowed to use sniffer dogs in certain situations, but police cannot physically search a person unless they “suspect on reasonable grounds” that the person possesses drugs or something else that is illegal at that particular time, or possesses something that has been, or may be, used to commit an offence.

The legislation does not say whether a positive indication by a sniffer dog is enough to ground the “reasonable suspicion” required for a physical search.

This blog seeks to explain the meaning of “reasonable suspicion” – and to answer the question, ‘Is a positive indication by a sniffer dog enough for police to search me?’

When Can Police Search Me?

To answer this question, it’s necessary to take a look at section 21(1) of the Law Enforcement (Powers and Responsibilities) Act 2002, which is commonly known as ‘LEPRA’.

The section states that:

‘A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:

(a) The person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,

(b) The person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,

(c) The person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,

(d) The person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.

When it comes to ascertaining when a positive indication by a sniffer dog can give rise to ‘reasonable suspicion,’ the most relevant part is subsection (d).

When Can I Be Searched By a Sniffer Dog?

Bearing this in mind, we can then take a look at sections 145 to 150 of LEPRA which describe the circumstances in which police can use ‘drug detection dogs.’

Section 148(1) states that police can use sniffer dogs without a warrant in five situations:

1. To search people at, or entering or leaving premises where alcohol is consumed (other than premises which are primarily used as restaurants or other dining places – i.e. pubs or clubs);
2. To search people at, or entering or leaving public places at which sporting events, concerts, artistic performances, dance parties, parades or other forms of entertainment are being held;
3. To search people at, or entering or leaving public passenger vehicles (e.g. buses, taxis, ferries or trains);
4. To search people at, or entering or leaving tattoo parlours;
5. To search people at any public place in the Kings Cross precinct.

Section 150 of the LEPRA states that a police officer must ‘take all reasonable precautions to prevent the dog touching a person’, and to keep the dog under control when carrying out drug detection operations.

So Can I Be Searched or Not?

Sniffer dogs are trained to sit down next to a person if they believe the person has drugs on them. This is known as a ‘positive indication.’

There is nothing in the LEPRA (or any other legislation) which explicitly states that a police officer can – or cannot – search someone based on a positive indication alone, and so the answer to this question depends on the meaning of ‘reasonable suspicion.’

The leading case in the area is R v Rondo [2001]. Three key principles about reasonable suspicion were formulated by Justice Smart of the NSW Court of Criminal Appeal in that case.

The first is that, for a reasonable suspicion to exist, there must be ‘more than a possibility’ that the person possesses drugs at that particular time; and there must be more than a reason to consider or look into the possibility of its existence.

The second is that there must be a factual basis for the suspicion – in other words, it cannot be random or arbitrary.

Finally, the most important matter to consider is the ‘information in the mind of the police officer at the time that they stop the person or vehicle or make the arrest.’ This involves looking at the source of the information and its content in light of the surrounding circumstances.

Significantly, empirical data shows that drug detection dogs are extremely unreliable – indeed, a positive indication does not mean that it is likely that the person possesses drugs. A comprehensive review of sniffer dogs conducted in 2006 which examined 470 drug dog operations over two years revealed that only 26% of positive indication resulted in illicit drugs being found – with only 0.19% of all positive indications resulting in a successful prosecution for drug supply.

This is backed up by government statistics obtained by Greens MP David Shoebridge which show that only 28-36% of positive indications resulted in illicit drugs being found between 2007-2013, with an average accuracy rate of just 32%.

This means that the vast majority of positive indications by sniffer dogs turn out to be false.

This is particularly concerning given that drug detection dogs are typically used in situations where drugs are most likely to be carried – such as music festivals, bars and nightclubs.

Incredibly, these figures stand in stark contrast to the high rates of people who report using illicit drugs at events such as music festivals – with one survey finding that over 50% of Big Day Out attendees between 2006 and 2009 reported using drugs. This bolsters the argument that sniffer dogs are extremely unreliable, and that they are being used by police to conduct arbitrary searches upon people – in other words, searches without any suspicion on reasonable grounds that the person is in possession of drugs at that particular time.

After reviewing the law and obtaining the advice of experienced barristers, the report concluded that ‘it is not sufficient for a police officer to form a reasonable suspicion that a person is in possession or control of a prohibited drug solely on this basis [of a positive indication].’

The report recommended that the police develop guidelines for determining whether there is a ‘reasonable suspicion’ to stop, search and detain a person.

This, together with the statistics discussed above, overwhelming supports the proposition that a positive indication alone does not mean that there is ‘more than a possibility’ that the person possesses drugs.

Rather, positive indications by sniffer dogs are being used by police officers as an excuse to illegally search people.

To justify a search, there must be something more pertinent than a simple indication by a drug detection dog. Indeed, there is a very strong argument that any search which takes place without additional factors is unlawful, and any drugs or illegal items found during that search may be excluded from court proceedings under section 138 of the Evidence Act.