Court rules sniffer-dog searches are unlawful

[calculoso]

http://www.ctv.ca/servlet/ArticleNew...hub=TopStories

The Supreme Court of Canada ruled today that two random searches conducted by sniffer dogs were unlawful.

The Court ruled 6-3 that the searches were a violation of section 8 of the Charter of Rights and Freedoms, which protects Canadians from unlawful search and seizure of their property.

In both cases, police did not have reasonable grounds to conduct the searches, the Court said.

The implications of the findings will be far-reaching. It is now unlikely that schools can invite police in to conduct random searches of lockers and backpacks, unless there is a strong suspicion that students are carrying drugs.

However, a special federal law protects the use of drug-sniffing dogs at airports, CTV's Robert Fife told Canada AM on Friday, right after the ruling was handed down.

Incredible. Way to hamstring the police (getting the scent from the air is a search???). Let's take away tools that they have in fighting crime.

[Ford Prefect]

I wonder if this also means that Corrections workers can't use dogs to screen inmates' visitors. If guards can't use a sniffer dog to catch drugs being smuggled to inmates an already bad situation is going to get a lot worse.

[Jayems]

Ah, criminals getting off on a technicality. Love our justice system.

[@theCBE]

Your title is misleading. No where does it say sniffer-dog searches are unlawful. It says that in these two cases they were unlawful because there was no resonable suspicion to justify searching the two people that were caught with drugs.

In one case they searched a school while confining kids in the classrooms. They received no tips that there were drugs in the school, and on the information they had at the time there was no way they would have been given a warrant to search the school.

In the second case the police officer searched the man because as he came off the bus the man gave him an "elongated stare". He actually searched the guy because he looked at him funny.

I would think that allowing the two cases to stand would set a much worse precedent then allowing their appeals.

[flylock shox]

Y'know... there was a time I thought the Charter was a good thing...

[fredr123]

Originally Posted by @theCBE

Your title is misleading. No where does it say sniffer-dog searches are unlawful. It says that in these two cases they were unlawful because there was no resonable suspicion to justify searching the two people that were caught with drugs.

In one case they searched a school while confining kids in the classrooms. They received no tips that there were drugs in the school, and on the information they had at the time there was no way they would have been given a warrant to search the school.

In the second case the police officer searched the man because as he came off the bus the man gave him an "elongated stare". He actually searched the guy because he looked at him funny.

I would think that allowing the two cases to stand would set a much worse precedent then allowing their appeals.

+1 for rationality

Here are links to the cases if you want to read them yourself:
R. v. Kang-Brown, 2008 SCC 18; http://canlii.org/en/ca/scc/doc/2008...2008scc18.html

An RCMP officer involved in a special operation designed to detect drug couriers at bus stations observed a bus arriving at the station and the accused getting off. 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. The officer eventually approached the accused, 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 accused put his bag down and was unzipping it when the officer went to touch the bag. The accused 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 accused was searched and drugs were found on his person and in his bag. The trial judge found that the accused was neither arbitrarily detained nor unlawfully searched and entered a conviction. She held that the odours from the bag, which emanated freely in a public transportation facility, did not constitute information in which the accused had a reasonable expectation of privacy and that s. 8 of the Canadian Charter of Rights and Freedoms was accordingly not engaged. The Court of Appeal upheld the conviction.

R. v. A.M., 2008 SCC 19; http://canlii.org/en/ca/scc/doc/2008...2008scc19.html

The police accepted a long‑standing invitation by the principal of a high school to bring sniffer dogs into the school to search for drugs. The police had no knowledge that drugs were present in the school and would not have been able to obtain a warrant to search the school. The search took place while all the students were confined to their classrooms. In the gymnasium, the sniffer dog reacted to one of the unattended backpacks lined up against a wall. Without obtaining a warrant, the police opened the backpack and found illicit drugs. They charged the student who owned the backpack with possession of cannabis marihuana and psilocybin for the purpose of trafficking. At trial, the accused brought an application for exclusion of the evidence, arguing that his rights under s. 8 of the Canadian Charter of Rights and Freedoms had been violated. The trial judge allowed the application, finding two unreasonable searches: the search conducted with the sniffer dog and the search of the backpack. He excluded the evidence and acquitted the accused. The Court of Appeal upheld the acquittal.

[RougeUnderoos]

Originally Posted by Jayems

Ah, criminals getting off on a technicality. Love our justice system.

Yep, the lame old "the police can't search anyone they want without justification" technicality is pretty stupid.

[Jayems]

Originally Posted by RougeUnderoos

Yep, the lame old "the police can't search anyone they want without justification" technicality is pretty stupid.

Well, yeah. Police are trained to look for suspicious activity. Found a guy, did everything by the book asking for consent to search.. low and behold he had drugs.

And I'm sure we all feel real bad for the scum bag selling drugs at school. Police have no business toiling in the drug trade at high-schools.

[calculoso]

Originally Posted by @theCBE

Your title is misleading.

Thanks... but it's not my title.

Originally Posted by @theCBE

No where does it say sniffer-dog searches are unlawful. It says that in these two cases they were unlawful because there was no resonable suspicion to justify searching the two people that were caught with drugs.

I'll agree.. to a point. Both incidents happened in places that were known to have drug problems:

- The school was known from the time the "new" principal came to the school, albeit two years before the "search". I have a problem with the length of time from when the principal granted the open invite to the police to enter the school, but I don't have a problem with a random drug "search" (ie: dogs to sniff the air around the school) when invited by the school principal. Going into someone's personal property - opening bags or lockers - I would be against... but not the dog sniff test.

- The bus depot was suspected as a location where drugs were being transported. I think they had every right to be there with their dogs. They didn't open up any bags without permission, and to get warrants for every person in the place would have been an impossible (and unreasonable) task.

Originally Posted by @theCBE

I would think that allowing the two cases to stand would set a much worse precedent then allowing their appeals.

That's part of the problem. The bus depot case was overturned by the SC after being upheld by the lower courts. They essentially said that the air in the public area was not allowed to be examined without a warrant, even with the drug transporting suspicions. Ridiculous.

[Bobblehead]

Originally Posted by calculoso

That's part of the problem. The bus depot case was overturned by the SC after being upheld by the lower courts. They essentially said that the air in the public area was not allowed to be examined without a warrant, even with the drug transporting suspicions. Ridiculous.

Thats NOT what the ruling said:

In this case, the courts found that Gurmakh Kang-Brown could not have had an expectation of privacy because of the odours of the drugs emanating from his bag and into the air.

However, the Supreme Court ruled that the sniffer-dog search of Kang-Brown's bag violated his Charter rights.

"The sniff in this case was an unreasonable search since the RCMP officer did not have grounds for reasonable suspicion at the time the dog was called," Justice Ian Binnie wrote.

The issue was the RCMP officer did not have grounds for reasonable suspicion at the time the dog was called

So if the way I read that is: if the police were doing a search there and happened to catch him, it would be fine. But the fact that this person was specifically targeted for a random search, before the dog was ever part of the process, is where the issue arises.

[fredr123]

Originally Posted by Bobblehead

Thats NOT what the ruling said:

The issue was the RCMP officer did not have grounds for reasonable suspicion at the time the dog was called

So if the way I read that is: if the police were doing a search there and happened to catch him, it would be fine. But the fact that this person was specifically targeted for a random search, before the dog was ever part of the process, is where the issue arises.

If the officer had a reasonable suspicion before he called the dog in, then we may have had a different result.

As it was, there was no specific tip or other information relative to Kang-Brown. The officer's spidey senses went off based on an elongated glance. From this the officer proceeded to speak to the accused and seek his consent to search his bag. Such consent was arguably given but may have been withdrawn. The accused did not begin to act antsy (officer's words) until he was in the presence of the officer.

I for one hope that a weird look and nervousness in the presence of the police is not sufficient to give the police grounds to search my person. A person shouldn't be penalized for exercising their Charter rights either by refusing to permit the officer to search the bag.

[RougeUnderoos]

Originally Posted by Jayems

And I'm sure we all feel real bad for the scum bag selling drugs at school. Police have no business toiling in the drug trade at high-schools.

Ah yes, the dreaded "scumbag drug dealer poisoning our innocents". We could look at it that way, think of the children and all that, or we could look at it the other way -- the Police randomly searching private property without the consent of the owner in the hopes of finding something illegal.

[Jayems]

Originally Posted by RougeUnderoos

Ah yes, the dreaded "scumbag drug dealer poisoning our innocents". We could look at it that way, think of the children and all that, or we could look at it the other way -- the Police randomly searching private property without the consent of the owner in the hopes of finding something illegal.

Right, but when does it go too far? At what point do we stop wasting millions of dollars on anti-drug campaigns, training police and their police dogs, a so-called government crack down on drugs just to turn the cheek and say, ah, we were wrong, carry on with your business of carrying around illegal narcotics and selling it.

It's a merry-go-round of incompetence, and the only winners are the drug dealers. Might as well make a sign that says "Hey, you can carry drugs for the intent of selling it on school property and the police can't do jack squat if they find it in a manner deemed too 'random' for the courts!"

So what the hell is the point of having drug sniffing dogs doing random checks? I guess nothing now, as they can't.

I guess it's just frustrating that this guy got off on the simple fact that he wasn't asked if the cops could search him for drugs.

[fredr123]

Originally Posted by Jayems

So what the hell is the point of having drug sniffing dogs doing illegal checks? I guess nothing now, as they can't.

Fixed

[RougeUnderoos]

Originally Posted by Jayems

Right, but when does it go too far? At what point do we stop wasting millions of dollars on anti-drug campaigns, training police and their police dogs, a so-called government crack down on drugs just to turn the cheek and say, ah, we were wrong, carry on with your business of carrying around illegal narcotics and selling it.

It already has gone too far. I don't want to derail this into another "The War On Drugs doesn't work and it's time for a change in plans" thread, but the War on Drugs doesn't work and it's time for a change in plans.

Granting Police the authority to do random dog-sniffing searches on private property and citizens is A) wrong B) not going to do much about the drug trade C) going to make PrisonCo rich

I read an article yesterday about how 25% of the people in the world who are currently in prison live in the United States, mostly due to their harsh stance on drugs. Are they getting close to Victory in the war?

[StoneCole]

Originally Posted by @theCBE

It says that in these two cases they were unlawful because there was no resonable suspicion to justify searching the two people that were caught with drugs.

...now granted I didn't read the article, but I'm assuming they found drugs on these two individuals. The fact that they had drugs tends to make me think their suspicions were likely pretty reasonable...I don't imagine it's like they just had the dogs sniff through two completely random people's shiz. The ends justify the means.

EDIT: okay I read it and it looks like they did sniff at completely random people's shiz.

[flylock shox]

The problem with these decisions isn't so much the ruling that people have a right not to be subjected to unreasonable searches (which is just the wording of section 8), it's that such an unintrusive search is now prohibited by law. My take on it is this: if you've got something in a public place, which is emitting a scent into public airspace, then you've got no right to complain about there being a search. To my mind, it should be analogous to the police using infrared equipped helicopters to fly over neighbourhoods to detect heat emissions from rooftops which are suggestive of marijuana grow ops. If you're emitting heat into a public area: too bad for you. Should be the same for smell.

I find the bus depot decision less disturbing, because the dog was specifically directed to the individual in question. That's more consistent with a search of the individual. However there should be a very low expectation of privacy in a backpack brought into school, or a school locker, and a random dog sniff search of such places in schools seems completely compatible with section 8 and prior decisions of the SCC.

[@theCBE]

Originally Posted by calculoso

- The school was known from the time the "new" principal came to the school, albeit two years before the "search". I have a problem with the length of time from when the principal granted the open invite to the police to enter the school, but I don't have a problem with a random drug "search" (ie: dogs to sniff the air around the school) when invited by the school principal. Going into someone's personal property - opening bags or lockers - I would be against... but not the dog sniff test.

- The bus depot was suspected as a location where drugs were being transported. I think they had every right to be there with their dogs. They didn't open up any bags without permission, and to get warrants for every person in the place would have been an impossible (and unreasonable) task.

I think part of the problem is that everyone is less offended by the unreasonableness of the "search" because its a cute cuddly police dog. How can anyone be offended by a dog?
What the police dog does is not substantially different in its effect then what the police do when they pat you down. The dog is patting you down with its nose to see if you are carrying drugs.

Would you be offended if you were walking around a bus station and a police officer patted you down because you looked at him funny? Or if the police came by to your school one day and patted everyone down? I'm sure some parents would have something to say about it.

What if they didn't even go that far and a Police officer with a particularly keen sense of smell comes by and asks all the kids to stay in their rooms because he wants to smell everyone for drugs. Not looking for anyone specific, but the principal has invited him so he is taking him up on his offer since he heard there are a few stoners at this school. Besides the fact that it would look ridiculous I think the sense of outrage would be considerable.

[flylock shox]

Originally Posted by @theCBE

I think part of the problem is that everyone is less offended by the unreasonableness of the "search" because its a cute cuddly police dog. How can anyone be offended by a dog?
What the police dog does is not substantially different in its effect then what the police do when they pat you down. The dog is patting you down with its nose to see if you are carrying drugs.

Would you be offended if you were walking around a bus station and a police officer patted you down because you looked at him funny? Or if the police came by to your school one day and patted everyone down? I'm sure some parents would have something to say about it.

I think the two examples are clearly distinguishable, and one is clearly more intrusive than the other. I think most people would be uncomfortable with a person randomly patting them down, as opposed to a dog walking by and sniffing them (which is what untrained dogs do too).

[@theCBE]

Originally Posted by flylock shox

To my mind, it should be analogous to the police using infrared equipped helicopters to fly over neighbourhoods to detect heat emissions from rooftops which are suggestive of marijuana grow ops. If you're emitting heat into a public area: too bad for you. Should be the same for smell.

I find the bus depot decision less disturbing, because the dog was specifically directed to the individual in question. That's more consistent with a search of the individual.

Two points.
1. I don't know the specific but I seriously doubt that when police officers do a fly over and see a house emitting abnormal amounts of heat they immediately rush the door. It gives them a basis to begin surveillance on the house to see if there is something fishy going on. What if the person has a steam room that's always on? If there is a scent of drugs in a public place this would in my opinion give them a reasonable justification to start surveillance around the area where the smell is to see if they can get some more information.

2. You have the order of events wrong. The dog wasn't specifically directed at the person, through his own superior sense of smell. The police officer felt the person gave him a weird look, "elongated glance", and then HE directed the police dog to go sniff him out.