The right to smell

Last Friday, the Supreme Court of Canada brought down two long-anticipated decisions on the constitutionality of using drug detection dogs (sniffer dogs) to find concealed drugs: one at a bus station, the other at a high school. Before I get to those decisions, it’s worth looking at how this issue is handled in Australia’s (pre-Charter) law, if only for its amusement value.

Seven years ago, the NSW police were doing an ‘operation’ on Sydney’s Oxford Street. Apparently, part of this involved hanging around in plain clothes around outside the NV Nightclub at 2AM in the morning, where a line of people were waiting to get in. Accompanying these cops was Rocky, a trained sniffer dog, who supposedly did what comes naturally to such dogs:

Rocky picked up a scent and led Senior Constable Richardson towards the source of such scent, namely the defendant. When Rocky reached the defendant he put his nose on the defendant’s pocket. Senior Constable Richardson then identified himself to the defendant, who nonetheless did not come to a halt but walked away. As he did so Rocky walked with him, indicating to Senior Constable Richardson the source of the scent that he had detected by placing his nose on the defendant’s pocket. The defendant became agitated. He stopped walking. Rocky stopped too and again put his nose on the defendant’s pocket. This occurred on a number of occasions in the course of which the defendant kept pushing Rocky’s head away from his pocket. Senior Constable Richardson then observed the defendant put his hands in his pocket and remove some plastic bags. At about that time Sergeant Gentle, who was then accompanied by Constable Schmidt, also asked the defendant to halt. The defendant did so and it would appear that a search of his person was then made by Sergeant Gentle or Constable Schmidt.

This nuanced bit of street policing wasn’t too fun for Glen Darby. The search of his ‘person’ revealed some dope and speed. However, things started looking up for him when he drew a Magistrate – NSW Deputy Chief Magistrate Mary Jerram – who not only found that the dog had ‘searched’ Darby, but also that the search was illegal (because the cops – as opposed to Rocky – didn’t reasonably suspect that Darby was carrying drugs before Rocky started nosing around – apparently being in a line to enter a nightclub on Oxford Street doesn’t count) and – in an exceedingly rare event – excluding the evidence against Darby from the courtroom. She even quoted the ICCPR are in the process. Nice to see that these things aren’t career suicide.

Alas, all of these decisions were appellable and in fact were overturned by the more straight-laced Justice O’Keefe. He said that he would have done the usual Australian judicial thing in relation to the question of excluding the evidence: letting it in on the grounds that the police didn’t kill anyone and Darby is a nasty moustache-twirling villain. But, as well, he held that Jerram was wrong to find that Darby was searched (that is, before the police searched him.) Sniffing, O’Keefe held, isn’t a search, because it doesn’t involve touching anyone. Basically, Rocky just searched the air surrounding Darby. So, the NSW Parliament’s panicked response to the original decision – hurriedly passing a new law authorising the use of sniffer dogs – wasn’t necessary. 

O’Keefe’s decision shows the limits of Australia’s common law when it comes to protecting people to privacy. As is endlessly noted, there is no common law right to privacy. Just a right against trespass to the body or property. The fragility of these latter rights is shown by the portion of O’Keefe’s judgment where he has to deal with the apparent contact between the dog and Darby. Darby’s lawyer, Clive Steirn, is MY kinda lawyer, submitting the following on this point:

If your Honour were to do as this dog did and nuzzle the defendant’s genitals, it would be an indecent assault.

That’s EXACTLY what I would have said. True too. O’Keefe’s response is also hilarious, though perhaps not intentionally:

It is unnecessary for the purposes of this decision to resolve that question. The line between that which is merely eccentric and that which constitutes an assault – whether indecent or otherwise – need not be drawn in this case. There was no finding of assault. Furthermore, acts that might constitute an indecent assault if perpetrated by one human being on another, may well be characterised quite differently if performed by one dog on another, or by a dog on a human. When a “crotch nuzzle” (as senior counsel for the defendant so delicately described the relevant actions of Rocky) is performed by a dog in relation to a human being, it may be no more than a conventional, friendly, social gesture with no hostile intent, and unlikely to constitute an assault – whether indecent or otherwise.

So, O’Keefe is a dog person. Rocky was just being playful. Whooooose a good boy? Why you are, you doggy doggy doggy, give us a kiss, etc. Even if you’re a dog person, you have to be dubious about the application of this sort of reasoning to a police dog trained to ferret out drugs.

But, anyway, the law on sniffing is reasonably clear. Dogs – and, for that matter, people – can sniff all they want and the only limit (if any) on what they can do involves actual contact. In this sense, everyone has the right to smell. If the dog can make it clear to the cops (without bunting) that it smells drugs on a particular person, then the cops have their reasonable suspicion to do their own search. If the two Canadian cases had occurred in NSW, then what the cops did would have been lawful.

Darby’s saga didn’t end at the Supreme Court. He appealed to the Court of Appeal and managed to get one judge saying that the original magistrate got it right. The other two backed O’Keefe’s take on the law, but not his take on the facts. They felt that everything had to be sent back to the Local Court for a magistrate to sort out exactly what contact occurred between Rocky and Darby and whether that contact came after or before the police acquired their reasonable grounds to search Darby. Alas, I can’t find any news about what happened next. Does anyone know?

Victoria’s current drug law is basically identical to NSW’s in 2001. But what difference has the Charter made? To be continued…

2 thoughts on “The right to smell

  1. Pingback: Gans on admissible evidence in Australia | James5

  2. Dr Gans,

    If you must know, we students of Evidence & Proof think you’re hilarious — and that post was well written as well as very funny.


    E&P Sem1 2008 Student.

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