In 2004, the Ombudsman commenced a report on the use of drug detection sniffer dogs by police in NSW. Significantly, the report revealed that 73% of people identified by detection dogs are not carrying drugs. The NSW Council for Civil Liberties has described the findings of the report in relation to the use of drug detection dogs by police as a ‘dismal failure’.

Judicial opinion seems to favour the view that the actions of drug detection dogs do not constitute a search. Instead, drug detection dogs are engaged in acts of identification that police use as a tool to assist in the formation of a reasonable suspicion that a person is in possession of a prohibited drug. This would generally mean that a positive indication by a drug detection dog would not constitute an illegal search. Each case needs to be assessed however on its own facts.

Judge of the Supreme Court, Peter Garling RFD has provided that in his opinion, a drug dog indication of itself and without any other fact being taken into account, is not a sufficient factor to justify the formation of a reasonable suspicion. He described the indication alone which has a 26% chance of identifying the commission of a drug offence as ‘entirely arbitrary’.

The law is not clear in this regard and the facts of each case need to be considered by legal professionals for accurate advice to be given.

In 2014 Nicholas Cowdery and Alex Wodak wrote that:

“During surveillance operations only in a tiny minority of searches find any drugs. Interpreting signals from the dogs, police officers often think drugs are present when there are none. Very many people who have drugs at these events are not detected. These operations achieve little and too often they are counter-productive… The impact of these intrusive searches on people’s lives is a major negative of the program. Another cost is that these operations seem to only increase the health risks. The presence of drug dogs at festivals and parties creates an incentive for attendees to take all their drugs at once prior to entering.”

If you have been subject to a drug detection dog handled by police and require legal advice, please contact Sydney Criminal Defence Lawyers on (02) 8059 7121

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