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

During pre-operational briefings Ombudsman observers regularly heard dog handlers advise police that drug
detection dogs are just a tool to aid in the formation of a reasonable suspicion. However, it appears that many
police are of the view that a drug detection dog indication, of itself, may be sufficient for the formation of a
reasonable suspicion to lawfully search a person and/or vehicle:
NB After a positive indication by a drug detection dog, the subject vehicle will be subjected to a
thorough search. 210
If the drug detection dog gives a positive indication the vehicle will be comprehensively searched. 211
The issue is addressed in the draft SOPS for 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. 212 [Original emphasis.]
In addition, it also appears that some police adopt a broad interpretation of the factual basis required to enliven the
reasonable suspicion to search. For example, one senior officer we interviewed opined:
A [drug detection] dog gives us an indication that the person, at some stage recently, has come into contact
with prohibited drugs. Based on that dog’s indication it’s been held that that forms a reasonable cause to
undertake a search. 213
Similarly, we found the following statement in a COPS event:
The drug detection dog indicated to the handler that the accused had recently been near or in possession of
[a] prohibited drug. 214
We are not aware of any legal authority for the proposition that police can form a reasonable suspicion to lawfully
search based on a suspicion that a person has recently been near or in contact with prohibited drugs. In our view,
police are required to form a reasonable suspicion that a person is currently in possession or control of a prohibited
drug before they are lawfully entitled to search the person. 215
4.3. Rate of finding drugs
As noted above (at paragraphs 3.2 and 3.4), the rate of finding drugs after an indication by a drug detection dog
was 23%. That is, during the review period, police did not locate drugs in over three quarters of the searches of
vehicles and/or its occupants after a drug detection dog indication.
The seemingly low rate of finding drugs after a drug detection dog indication has the capacity to undermine public
confidence in the ability of drug detection dogs to accurately detect the scent of prohibited drugs. It may also call
into question the police practice of relying on a drug detection dog indication as one of the factors relevant to the
formation of the requisite reasonable suspicion to search a person and/or vehicle.
4.3.1. Possible reasons for low rate of finding drugs
4.3.1.1. Cannabis smoke
One possible reason for the relatively low rate of finding drugs after an indication is the fact that drug detection
dogs appear to be able to detect cannabis smoke. Ombudsman observers regularly heard police inform persons
searched that the dogs can pick up the smell of cannabis on people who have recently used or been around people
using cannabis.
After noting a similarly low rate of finding drugs (26%) during the review of the Police Powers (Drug Detection Dogs)
Act 2001, the Ombudsman recommended that police refine the training of drug detection dogs to better exclude
cannabis smoke, residual scents and prescription drugs. 216
The NSW Police Force did not support the recommendation and advised that drug detection dogs are not trained
to detect cannabis smoke. In addition, the NSW Police Force suggested that there was no scientific evidence to
suggest that a drug detection dog would indicate the presence of cannabis on a person who had been in the
presence of other people smoking cannabis. In May 2007, the NSW Police Force advised that it had not given the
recommendation any further consideration. 217
However, during this review we sought further advice from the NSW Police Force in relation to the issue of cannabis
smoke and received the following response:
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NSW Ombudsman
Review of the Police Powers (Drug Detection Trial) Act 2003