Is evidence obtained by sniffer dogs acceptable in court?

It is sometimes extremely difficult to find drugs that are imported into Canada and other countries but for a number of years, the problem has been lessened by the use of dogs that are trained to sniff out drugs that are imported via suitcases and containers being brought into Canada. These dogs are called sniffer dogs. They can also sniff out explosives being brought onto planes.

An RCMP officer involved in a special operation designed to detect drug couriers at a Calgary bus station observed a bus arriving at the station and a man getting off. The man gave the officer an elongated stare and went into the bus station lobby.

The officer later testified that his training in the Jetway program taught him to watch for what he referred to as an “elongated stare”, a locked eye contact for a period of a few seconds. The man gave him such a stare. He said that the man then turned and looked back at the officer, who found this behaviour suspicious and that the man’s conduct aroused his suspicion. The officer approached the man, identified himself and told him that he was not in any trouble and was free to go at any time. The officer asked the accused if he was carrying narcotics. The accused said no. The officer then asked to look in the accused’s bag. The man put his bag down and was unzipping it when the officer went to touch the bag. The man pulled it away, looking nervous. At that point, the officer signaled another officer with a sniffer dog to approach. The dog sat down, indicating the presence of drugs in the bag. The accused was arrested for possession of and/or trafficking in drugs. The man was searched and drugs were found on his person and in his bag.

The case finally ended up in the Supreme Court of Canada. The issue before the court was whether or not the search was legal.In other words, was mere suspicion enough for the police to search for drugs without the assistance of a search warrant? The defendant’s lawyer argued that the search under the circumstances under which the search was conducted was contrary to section 8 of the Canadian Charter of Rights and Freedom. Section 8 states: “Everyone has the right to be secure against unreasonable search or seizure.”

The difficult issue raised by this appeal is not the existence of a police power to investigate crime using sniffer dogs or any other lawful devices or technology in places where the police are lawfully entitled to be, but the extent to which the use of such devices or techniques or animals is permitted by s. 8 of the Charter and, if so, in what circumstances.

The real question before the court was, “Is a search unreasonable when sniffer dogs are used without first obtaining a search warrant?”

The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. Because sniffer dog searches are conducted without prior judicial authorization, (such as the issuance of a search warrant) the after the fact judicial scrutiny of the grounds for the alleged “reasonable suspicion” must be rigorous.

In this particular case, the lawyer for the defendant argued that the police action was based on mere speculation. I have to agree with that point. But let me ask this rhetorical question. If a police officer sees a suspicious-looking man lurking behind a store in the dark, would he not justifiably initially speculate that the man may be attempting to break into the store? And if he has nothing but a mere suspicion, is he to ignore the man and return to the street and look for another malefactor? Admittedly, the man may be behind the store in order to urinate in privacy and nothing more than that.

Suppose the officer after making an inquiry as to why the man is behind the store is told by the man that he was doing nothing but relieving himself. Does the officer then have the right to search the man for burglar tools such as a screwdriver?

The answer is simple enough in law but may not be simple enough for the police officer. In order for the officer to justify his reason for conducting a search of the man, his suspicion must be reasonable and not merely speculative. The man’s explanation may be very well be reasonable, especially if there is evidence that he in fact did urinate behind the store. But suppose he hadn’t but claims he was about to when the officer approached him. This creates a dilemma for the officer because he has seen no evidence that the man urinated behind the store. Is his suspicion at this stage more than speculative? I think it would be and that being as it is, in my opinion, he would be justified in searching the man for burglar tools. If no tools were found, then the man’s story could be true and the police officer would be bound to let the man go. But if he finds a screwdriver in the man’s pocket, then he is duty bound to arrest the man on suspicion of attempting to break and enter into the store.

It is common ground that what occurred at the bus station was a warrantless search, and therefore presumptively unreasonable. However, had the dog sniff search been based on reasonable suspicion, the dog’s positive alert would have given the police the grounds to proceed on the spot with a warrantless search of the accused’s bag because of the dog’s demonstrated accuracy 90 to 92 percent of the time.

For example, suppose the police officer upon seeing the man exiting the bus; recognized him as a drug importer he once arrested. That alone would be reasonable grounds to suspect that the man may still be importing drugs notwithstanding the fact that the man may be a reformed criminal and is no longer committing crimes.

But suppose the man is not recognized as a former drug importer and he doesn’t appear to be acting in a suspicious manner. Does the police officer have the right to stop him at random and search him? If he did search him and he found drugs in his possession, would the search be contrary to section 8 of the Charter, to wit; denying the man his right to be secure against an unreasonable search?

Before answering that question, consider what happens at airports. The Canadian Customs Act states in part in section 99. (1) “An officer may at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts….” In other words, the customs people can randomly choose to search passenger’s bags at an airport and if that is so, then why can’t a police officer at a bus station randomly do the same?

Let me take you back to the bus station. Given that the dog alerted the police officers to the odour of narcotics and not to the actual presence of narcotics in the bag or on the person of the man, the arrest of the man in that case was premature. The police should first have confirmed the presence of narcotics by a hand search of the bag. If reasonable cause had existed, and given the positive alert and the dog’s history of accuracy, the RCMP would have been entitled to perform such a verification search on the spot and without prior judicial authorization. Once the sniffer dog showed a positive alert as to the possibility that there were illicit drugs in the bag and/or on the person of the man, the police should have obtained a search warrant before opening the bag or searching the man.

The members of the Supreme Court had to decide if the evidence of the police officers should be excluded because of the supposed section 8 breach of the Charter rights of the accused.

Three of the members of the court said that the use of sniffer dogs constitutes a search within the meaning of section 8 of the Charter, and without justified authority for such a search in a statute or at common law, the sniffer dog search breached section 8. They added that given the seriousness of the breach, the evidence should be excluded under section 24.(2) of the Charter. That part of the section states; “Where in the proceedings (in the court) a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice in disrepute.”

Generally speaking the section 8 standard is reasonable and probable cause, warrantless searches may be acceptable by careful application of the section 8 balance between the legitimate needs of law enforcement and the legitimate interest of “everyone” in privacy. The balance is calibrated according to the circumstances.

The guarantee of section 8 is not against search and seizure but against unreasonable search and seizure. The police rested their case on the minimal intrusiveness, narrowly targeted objective and high accuracy of specifically trained dogs. The police are entitled to call in aid sniffer dogs where they have reasonable grounds to suspect the presence of contraband. This Charter standard of “reasonable suspicion” is based, as stated, on the minimal intrusiveness, narrowly targeted objective and high accuracy of “sniffs” by specifically trained dogs.

On the facts, the question before the Supreme Court was whether the police at the Calgary bus station had grounds to suspect the appellant of possession of drugs sufficient to justify the use of a sniffer dog to investigate the appellant’s bag.

This narrowed down to the question as to whether or not reasonable cause existed in the mind of the police officer that originally stopped the man in the first place. The officer’s testimony in the man’s original trial was that the accused gave the officer an elongated stare and went into the station lobby. He then turned and looked back at the officer, who found this behaviour suspicious. In the mind of the officer, this kind of behaviour would look suspicious however, the man may have thought he recognized the officer as an old friend in his past and such stares would have been innocent enough. However, it was what was in the mind of the officer that mattered to the officer so the officer acted on what was in his mind at that moment. But was his suspicion reasonable?

According to Mr. Justice Binnie of the Court, the police action in this case was based on speculation and not reasonable suspicion. He stated that the evidence resulting from the sniffer-dog search should not have been admitted. It was his view that the man’s appeal should be allowed and his conviction set aside.

Although the court was hopelessly divided on when a sniffer dog could be used and whether there was a Charter violation, they were clear that using a sniffer dog did constitute a search. However, the majority ruled that the search was unreasonable because there were no "reasonable and probable" grounds for a search and the accused had a reasonable expectation of privacy in respect of his bag. That being as it was, the drug evidence was not accepted and the charge was dismissed.

Suppose a police officer has developed a fine sense of smell and can detect illegal contraband? Police are entitled to use their eyes and ears, so one presumes they are allowed to use their sense of smell. Is there really much of a difference in having a cop use his sense of smell as opposed to allowing him to use a police dog? I believe that if a police officer smells illicit drugs on someone, he has reasonable grounds to conduct a search.

This raises an interesting question. If a police officer can smell narcotics on a person, and if so, he can then legally search that person, why can’t he search a person if a sniffer dog gives signs that it too is detecting narcotics on a person?

Mr. Justice Cote said in his decision, he said in part;

“Once it is concluded that the Court might (or might not) accept the existence of “exigent circumstances relating to apprehended terrorist activities”, an area of law enforcement where sniffer dogs are already in use, it seems to me, with respect, that there is no persuasive reason to refuse consideration of the use at common law of sniffer dogs in relation to other apprehended criminal activities such as trafficking of narcotics except on the basis that the balancing of the state interest in collective security and public order in a terrorist case might weigh more heavily against the individual’s interest in privacy than in a drug bust.”

He went on to say;

“Sniffer dogs are used in many different situations. Because their ability to communicate is limited to “alerting” a simple “yes” or “no” to the presence of the targeted substance(s), the dogs are necessarily specialized. Otherwise their handlers, with no ability to interrogate their canine helpers, wouldn’t know what the dog was alerting to. In some cases, the dog’s acute sense of smell is trained to target explosives, and they are used in airports and other places vulnerable to threats to public safety. Some dogs are trained to detect human scent and are used to locate people who are lost or to find their remains after death, or to attempt to track an abducted child to the place of concealment. Other dogs are trained to detect fire accelerants and are used in arson investigations. Still others are trained to detect illicit drugs for the purpose of everyday crime detection. It is evident that dogs assist the police in many crucial ways. In my view, where the police comply with the requirements of the Charter, they possess the common law authority to make use of sniffer dogs in places to which they have lawful access for the purpose of criminal investigations.”

The judge summed up by saying;

“Where reasonable suspicion exists, a sniffer-dog search is authorized by the common law, and the common law itself is reasonable on the basis of reasonable suspicion, given the minimally intrusive, narrowly targeted and high accuracy of “sniff searches” by dogs with a proven track record like Chevy. However, on the facts of this case, because of the absence of reasonable suspicion, the search fails. As there was not reasonable suspicion, the search was not authorized by law and fails. Further, it fails (because) the search (wasn’t) conducted reasonably. The police failed because they exercised their common law power based on speculation rather than objectively verifiable evidence supporting reasonable suspicion.”

The primary reason that sniffer dogs appear to be so attractive as a law enforcement tool is their keen sense of smell and high degree of accuracy. The evidence in the aforementioned case disclosed that the dog’s nose was reliable over 92% of the time in supporting an inference of the presence of drugs. With such a high success rate, a sniffer dog may properly be considered comparable to a very reliable informer. That by itself would be reasonable grounds for a police officer to commence with a search of a bag.

A public bus terminal (or any other terminal) is precisely the type of environment where a sniffer dog search subsequent to generalized suspicion is appropriate.

The common law tradition in our courts values liberty, but it has always sought to strike the proper balance between the interests of the individual and the interests of society, and this also applies to law enforcement officers.

Mr. Justice Cote in his conclusion said;

“Ordinary currency and coins sometimes carry a residual odour of cocaine or other drugs. Accordingly, I believe the arrest of the appellant in this case was in any event premature. The police should first have confirmed the presence of narcotics by a hand search of the gym bag. In my view, if reasonable cause had existed, and given the positive alert and Chevy’s history of accuracy, the RCMP would have been entitled to perform such a verification search on-the-spot and without prior judicial authorization… In sniffer-dog cases, the police are given considerable latitude to act in the absence of any requirement of prior judicial authorization. The only effective check on that authority is the after-the-fact independent assessment. I conclude that the police initiated a warrantless search on inadequate grounds. In my view, on the facts here, the evidence should be excluded.”

The administration of justice would be brought into disrepute if the police, possessing an exceptional power to conduct a search on the condition of the existence of reasonable suspicion; and having acted in this case without having met the condition precedent, were in any event to succeed in adducing the evidence into court.

The manner in which a search is carried out must be reasonable. It is at this stage of the analysis that the conduct of the police is evaluated. Even if a search is authorized by a law that is reasonable, it will be vitiated and the authority for it will be lost if it is conducted in an unreasonable manner.

The prosecution must demonstrate that the police were acting in the exercise of a lawful duty when they engaged in the conduct in issue. Second, and in addition to showing that the police were acting in the course of their duty, the prosecution must demonstrate that the impugned conduct amounted to a justifiable use of police powers associated with that duty. The court must satisfy itself that the conduct of the police was justified by applying the standard of what is reasonably necessary in light of the totality of the circumstances.

The aforementioned case did not concern the use of a sniffer dog as an incidental search. Rather, the issue was whether the use of a sniffer dog by the police as an independent investigative tool in this case was authorized at common law pursuant to principles developed in accordance with the requirements of the Charter.

Did the appellant, while in a public bus terminal, have a reasonable expectation of privacy in respect of odours emanating from his bag that are imperceptible to humans?

The court ruled that he did.

It is significant that the odours in and emanating from the appellant’s bag were imperceptible to humans, hence the need for a dog to detect the narcotics. This is not a case in which the police were relying on their own senses. Rather, they used the dog to obtain information about the possible presence of a controlled substance inside the appellant’s bag, as opposed to something that was outside the bag. They used the dog to identify the contents of, and not merely the odours emanating from, the bag. By detecting what was in the air in the vicinity of the appellant’s bag, the dog functioned as an investigative tool that allowed the police to conclude, in light of the dog’s 90 to 92 percent success rate, that there was a controlled substance inside the bag.

This is where the police officers made their mistake. The first officer had no reasonable grounds to suspect that the man was carrying illicit drugs on his person or in his bag. The fact that he stared at him and later pulled his bag away from the officer is not by itself, evidence that illicit drugs were in the bag. The police then (without first obtaining a search warrant) brought the sniffer dog to search for the dugs by its nose.

Other factors also indicate that the appellant had an objectively reasonable expectation of privacy. He owned and used the bag, he was present at the time of the search, the bag was one that could be carried close to the body, and he did not abandon it or leave it unattended. The conduct of the police in this case also intruded to a certain extent on the appellant’s right to territorial privacy: members of the public have historically used bus terminals to travel as a means of exercising their freedom of mobility, security screening was not done routinely in this terminal and there were no signs indicating that a luggage search was expected. The appellant did have an objectively reasonable expectation of privacy and thusly be free from an unwarranted search. Although the search technique employed by the police was only minimally intrusive, the appellant’s objectively reasonable expectation of privacy in this case was low than if it was done in the privacy of his home.

What was in issue was whether the circumstances of this case justified the recognition of a common law power to conduct a investigative search using a sniffer dog. The police were clearly acting in pursuit of their common law duty to investigate and prevent crime when they observed and questioned the appellant and, subsequently, when they used the dog to detect the presence of narcotics. However, it was not enough that the police were acting in pursuit of a lawful duty when they used the dog in this case. The Crown had to also establish that the powers were used in a way that met the standard of what is reasonably necessary in light of the totality of the circumstances.

What grounds were required before the police were reasonably justified in using their sniffer dog in the instant case? A “mere hunch” will never be sufficient for the purposes of the reasonable suspicion standard Courts must not, in assessing the grounds, be so demanding that this standard becomes a reincarnation of the reasonable grounds to believe a crime has been committed.

The protection of privacy interests rests on the constraints, like the requirements of prior authorization and reasonableness, imposed on those conducting searches and seizures by the wording of section 8 and by the courts in applying that section. The needs of law enforcement have to be taken into consideration and to be balanced with reasonable expectations of privacy.

The common law has long been viewed as a law of liberty. Should we move away from that tradition, which is still part of the ethos of our legal system and of our democracy? This case is about the freedom of individuals and the proper function of the courts as guardians of the Constitution. I doubt that it should lead us to depart from the common law tradition of freedom by changing the common law itself to restrict the freedoms protected by the Constitution under which holds that we be free from unreasonable searches by the police.