Review of the Police Powers (Drug Detection Trial) Act 2003 - NSW ...

mindful to ensure that they do not create any false impression that the [Drug Detection Trial Act] creates any
additional power of entry.
In summary, there is nothing within the [Drug Detection Trial] Act that would prevent an authorisation
specifying a search area that includes some privately owned land. Having said this, the fact that an
authorisation has been granted, provides no additional power of entry to that land. As the truck stop area is
generally open to and used by the public, police are equally permitted to use that land. However, because
that land is in fact privately owned, if the owner/occupier/person apparently in charge asks police (or any other
person) to leave, police (or such other person) would be lawfully required to leave the premises.
Ombudsman observers attended the operation at this truck stop. We noted the operation was initially delayed by the
process of seeking consent of the person in charge of the truck stop. During this period, a large number of heavy
vehicles exited the truck stop before police had the opportunity to screen them with the drug detection dog. No
drugs were seized as a result of the operation at the truck stop.
In our view, it may be undesirable for police to plan drug detection operations that depend on external factors such
as consent of the owner, occupier, or person in charge of the location. For example, if the person in charge of the
truck stop did not consent to police conducting the operation at the truck stop, approximately 15 police officers and
the drug detection dog would have been unable to conduct their duties, which would have been a waste of valuable
police time and resources.
In stating this, we are not being critical of the police decision to conduct the operation at the truck stop, which
appeared to be based on a sound strategy to target vehicles stopped before an established static check point at
another location.
4.2.3. Opening doors and putting dogs in cabins of heavy vehicles
Section 11(2) of the Drug Detection Trial Act provides:
A police officer using a dog to carry out general drug detection under an authorisation must comply with
the following:
…
(c) the police officer must not allow the dog to enter any driver or passenger area of a vehicle, except as
provided by paragraph (d),
(d) the police officer may allow the dog to enter any driver or passenger area of a vehicle only if the police
officer is entitled to search it and all persons have left the area to be searched,
(e) the police officer must not direct a person to open the door of a vehicle unless the police officer is
entitled to search the person or vehicle or is otherwise entitled to give such a direction,
(f) the police officer must not direct a person to open an area of a vehicle that is not a driver or
passenger area of the vehicle, unless the vehicle is used for commercial purposes (including the
transport of goods) or is a public passenger vehicle.
Section 11(3) of the Drug Detection Trial Act provides:
A police officer using a dog to carry out general drug detection under an authorisation may:
(a) if a vehicle is used for commercial purposes (including the transport of goods), or is a public
passenger vehicle, allow the dog to enter an area of the vehicle that is not a driver or passenger area of the
vehicle (for example, the boot, back of a goods vehicle or luggage hold of a coach), and
(b) use the dog for general drug detection outside any vehicle.
Sections 11(2)(e) and (f) state that a police officer must not direct a person to open the door of a vehicle unless the
officer is entitled to search the vehicle or is otherwise entitled to give the direction.
The circumstances in which an officer is entitled to search a vehicle are reasonably clear. For example, an officer
would ordinarily be entitled to search a vehicle if she or he formed a reasonable suspicion that a person inside the
vehicle is in possession or control of a prohibited drug, 176 or that the vehicle contains a prohibited drug. 177
However, the circumstances that would otherwise entitle a police officer to give a direction to open the door of a
vehicle are less clear.
It appears that section 11(2) is aimed at ensuring that, with the exception of commercial vehicles, police use a dog
for general drug detection outside a vehicle 178 in a ‘fast and non-intrusive’ manner. 179
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NSW Ombudsman
Review of the Police Powers (Drug Detection Trial) Act 2003