1. Police Powers & Sniffer Dogs
Presented by Justin Wong & Maxine Malaney

2. Outline Legislative Basis and Caselaw LEPRA provisions
Darby v DPP (2004) 61 NSWLR 558
Recent Developments/Effectiveness
Evidence Act, Section 138
Questions

3. Power to Search
Section 146 Law Enforcement (Powers and Responsibilities) Act 2002
If a police officer is authorised to search a person for the purpose of detecting a drug offence, the officer is entitled to use a dog for that purpose.
A police officer is, for the purpose of detecting a drug offence, entitled to be accompanied by a dog under the officer's control if the officer is entitled to enter, or be in or on, particular premises in the exercise of the officer's functions.

4. Power to Search
Section 21 Law Enforcement (Powers and Responsibilities) Act 2002
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:
(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.

5. Hyder v Commonwealth of Australia [2012] NSWCA 336
Subjective element: state of mind must be formed by police officer who does search
Objective element of test: ‘reasonable grounds’ requires facts which are sufficient to induce that state of mind in a reasonable person
Must be some factual basis for the suspicion or belief
Reasonable grounds must be judged against what was known or reasonably capable of being known at the relevant time
Hyder v Commonwealth of Australia [2012] NSWCA 336

6. “If the police officer suspects on reasonable grounds…”
Standard Operating Procedures: Planned Drug Detection Dog Operations
“Police are again reminded that an indication given by a drug detection dog DOES NOT on its own provide police with the power to search, nor does it suffice for an officer to 'suspect on reasonable grounds' possession of a prohibited drug.”
“…investigating police need to make their own assessment. This can include observations, asking questions, intelligence received, etc, in an effort to build sufficient information to 'suspect on reasonable grounds’.”

7. Where can they search?
Section 148 Law Enforcement (Powers and Responsibilities) Act 2002
A police officer may, without a warrant, use a dog to carry out general drug detection in relation to the following persons:
Premises being used for the consumption of liquor sold at the premises
Public place where there is a sporting event, concert, dance party, parade…
Public passenger vehicle
Premises authorized under the Tattoo Parlours Act 2012
Kings Cross precinct `
Section 149 Law Enforcement (Powers and Responsibilities) Act 2002
(2) A police officer who has reasonable grounds for believing that the persons at any public place may include persons committing drug offences may apply to an authorised officer for a warrant under this section.

8. Darby charged with possession of ice and cannabis
Waiting in line outside nightclub when approached by sniffer dog
Dog was “bunting and ferreting” at pocket
Facts
Did actions of police dog amount to a search? If so, was search was illegal?
Issue
Dog’s actions did not amount to a ‘search’
Important when reasonable suspicion was formed – must be formed prior to search
Ipp JA, McColl JA agreeing
Darby v DPP (2004) 61 NSWLR 558

9. How effective are they? 2006 Ombudsman Review:
26% of searches revealed drugs
84% of drugs found were cannabis
2016 Police figures:
32% of searches revealed drugs
Cost of $9,420, (average) per year from
How effective are they?

10. Source: Sydney Morning Herald

11. Source: Sydney Morning Herald

12. Section 138 Evidence Act 1995
Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law, or
(b) in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

13. Evidence Act s 138 considerations
Identify the nature of the impropriety or illegality
Was there a proper indication by the dog?
Did the searching officer have reasonable grounds other than the dog indication to suspect that the accused was in possession of a prohibited drug?
Evidence "obtained” and seriousness of offence

14. Questions?