Court rules sniffer-dog searches are unlawful

[@theCBE]

Originally Posted by flylock shox

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).

That's my point. People are not offended by the sniffer dog, because that's what dogs do. But the fact is it is not a normal dog, it is trained just as a police officer is trained. The actually effect of the dog sniffing you down or a police officer patting you down is the same, you are being searched.

The police are effectively depriving your of your right to privacy, but they are doing it with a dog so it doesn't seem so offensive. To make it worse they are depriving you of your privacy with out any reasonable explanation as to why they are suspicious.

[flylock shox]

Originally Posted by @theCBE

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.

Dealing with your second point: that's what I meant. It's less disturbing because the dog was specifically directed to a specific bag on the basis of an officer's hunch. I don't find that nearly as problematic as the A.M. decision.

Back to your first point: You're correct. The Tessling decision, dealt with by the majority in A.M., specifically notes that what FLIR technology detects can only form part of the grounds for a search warrant, it is insufficient by itself. This is not true of drug dog 'technology' which is specific enough to create grounds for a search on the indication of the dog alone. HOWEVER, the majority's reasons on this point are, in my opinion, very weak. It simply does not matter how incriminating the evidence obtained by the 'search' is, it only matters how intrusive the search was. A violation of a person's section 8 rights shouldn't be dependent upon the strength of the evidence obtained against them, but rather on the extent to which their expectation of privacy has been compromised. To me, a random dog sniff and a random FLIR search are not distinguishable insofar as the breach analysis is concerned. The only difference lies in the strength of the evidence obtained, but that should be irrelevant to the question of whether there was or was not a breach.

[flylock shox]

Originally Posted by @theCBE

That's my point. People are not offended by the sniffer dog, because that's what dogs do. But the fact is it is not a normal dog, it is trained just as a police officer is trained. The actually effect of the dog sniffing you down or a police officer patting you down is the same, you are being searched.

The police are effectively depriving your of your right to privacy, but they are doing it with a dog so it doesn't seem so offensive. To make it worse they are depriving you of your privacy with out any reasonable explanation as to why they are suspicious.

And that's MY point too: human police officers are trained in all sorts of things, and form grounds for arrest and search based on their training and observations. When Joe Blow walks down the street and sees Buddy Guy walking in the other direction, with a folded piece of lotto paper in his hand, and a rubber hose protruding from his breast pocket, Joe Blow thinks little of it and keeps on walking. Constable Observant however, knows drugs are often packaged in lotto flaps, and rubber hoses are attached to crack pipes to protect users from 'crack lip.' Joe Blow doesn't have grounds for arrest and search, but Constable Observant does. In the same way, if Random Pup smells crack cocaine as Buddy Guy walks buy, it means nothing to him. But if PD Supernose smells it, he indicates that Buddy Guy has drugs on him, effectively forming grounds for arrest and search. The point is, the observation underpinning the arrest and search is based on something that was in 'plain view' or in this case 'plain scent,' and not an intrusive search of the person.

[RougeUnderoos]

Originally Posted by flylock shox

And that's MY point too: human police officers are trained in all sorts of things, and form grounds for arrest and search based on their training and observations. When Joe Blow walks down the street and sees Buddy Guy walking in the other direction, with a folded piece of lotto paper in his hand, and a rubber hose protruding from his breast pocket, Joe Blow thinks little of it and keeps on walking. Constable Observant however, knows drugs are often packaged in lotto flaps, and rubber hoses are attached to crack pipes to protect users from 'crack lip.' Joe Blow doesn't have grounds for arrest and search, but Constable Observant does. In the same way, if Random Pup smells crack cocaine as Buddy Guy walks buy, it means nothing to him. But if PD Supernose smells it, he indicates that Buddy Guy has drugs on him, effectively forming grounds for arrest and search. The point is, the observation underpinning the arrest and search is based on something that was in 'plain view' or in this case 'plain scent,' and not an intrusive search of the person.

The dog is searching every person that walks by without any sort of suspicion at all. The cop isn't doing that.

As far as PD Supernose is concerned, everyone is guilty until proven innocent. We are leaving it up to a dog. We are letting a dog do what we don't let humans do because when a human does it he is violating our rights as citizens.

[flylock shox]

Originally Posted by RougeUnderoos

The dog is searching every person that walks by without any sort of suspicion at all. The cop isn't doing that.

As far as PD Supernose is concerned, everyone is guilty until proven innocent. We are leaving it up to a dog. We are letting a dog do what we don't let humans do because when a human does it he is violating our rights as citizens.

But the officer IS doing that just by looking at you. If you were smoking a fat rock, he'd see it and arrest you. If that rock were in your hip pocket, he wouldn't: he'd walk on.

PD Supernose however, is 'looking' at you with his nose. If you were smoking a fat rock, he'd smell it and indicate. If that rock were in your hip pocket, he'd smell it and indicate.

The point is, as far as you and your personal rights are concerned, the two 'searches' are equally unintrusive, and neither should be considered a breach of your Charter rights.

Mind you, the more I read these decisions, the more fact specific I find them to be. I'm not sure they'll have the broad consequences implied by the CTV article.

[Burninator]

Originally Posted by flylock shox

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

Good thing you have wised up.

I believe it was Benjamin Franklin who said, "Anyone who trades liberty for security deserves both liberty and security and gets moar of thems."

Question for you legal experts out there. How are check stops not an abuse of our rights? They remove your privacy and you are presumed guilty until proven innocent,

[flylock shox]

Originally Posted by Burninator

Question for you legal experts out there. How are check stops not an abuse of our rights? They remove your privacy and you are presumed guilty until proven innocent,

Check stops are a violation of your rights against arbitrary detention. However, driving is a licensed activity, and the legislative goal behind checkstops is legitimately related to protect drivers and ensure the competence of drivers. It is a demonstrably reasonable limit on our freedoms as defined in section 1 of the Charter. See the SCC's 1990 decision in R v. Ladouceur.

[@theCBE]

Originally Posted by flylock shox

Joe Blow ... Buddy Guy ... lotto paper rubber hose ... breast pocket... Constable Observant ... drugs ...rubber hoses ...'crack lip.'... if Random Pup smells crack cocaine ...PD Supernose... The point is, the observation underpinning the arrest and search is based on something that was in 'plain view' or in this case 'plain scent,' and not an intrusive search of the person.

I don't think you and I are as far apart on the issue as it seems. Having said that I still have a problem with your scenario. In your story the police officer sees something (rubber hose, lotto paper) and that is enough (arguably, but I will concede it) to raise suspicion to detain, search and eventually arrest. When the to dog is walking down the street he misses a major step. There is nothing to garner any suspicion, he goes from walking down the street to automatic search. When the dog sniffs you he IS searching you. Then the police officer will search you again, to confirm that that what the dog has just told him, you are holding.

I have nothing against using police dogs. They are efficent, unobtrusive and effective ways to search someone. Besides the fact that there are few things cooler than a dog taking down a criminal. The problem I have is that they cannot reason, therefore they can not justify why they are searching. That job is left up to the police, and in these two situations the police could not reasonably justify using the police dogs as searching tool.

[flylock shox]

Originally Posted by @theCBE

I don't think you and I are as far apart on the issue as it seems. Having said that I still have a problem with your scenario. In your story the police officer sees something (rubber hose, lotto paper) and that is enough (arguably, but I will concede it) to raise suspicion to detain, search and eventually arrest. When the to dog is walking down the street he misses a major step. There is nothing to garner any suspicion, he goes from walking down the street to automatic search. When the dog sniffs you he IS searching you. Then the police officer will search you again, to confirm that that what the dog has just told him, you are holding.

I have nothing against using police dogs. They are efficent, unobtrusive and effective ways to search someone. Besides the fact that there are few things cooler than a dog taking down a criminal. The problem I have is that they cannot reason, therefore they can not justify why they are searching. That job is left up to the police, and in these two situations the police could not reasonably justify using the police dogs as searching tool.

I agree with you: we're not that far apart, the main substance of my argument is based largely on speculation about how far reaching these decisions will be. Where we differ is this: I'm saying that the 'plain view' doctrine which effectively removes officer observations of objects visible to the naked eye from the realm of 'searches,' should similarly apply to police dog observations of objects visible to the naked nose. If these so-called searches can be performed without detaining a person, or interfering with them physically, then the fruits of those searches are proper grounds for conducting an arrest. The dog, of course, never forms grounds to arrest - the officer forms grounds on the basis of the dog's response and his own training. One might say, as the SCC appears to have done, that the human officer is employing a tool to see through the clothes or backpack of the individual involved. I disagree, because that tool never has to 'look' into the backpack: the smell emanates from the backpack into the public realm, in the same way that a crack hose visible to the naked eye does. In my opinion, both circumstances are equally unintrusive, and should justify an officer forming grounds for arrest.

And, just to clarify, officers cannot search for evidence incidental to an detention: they must have grounds to effect an arrest before they can do so.

[@theCBE]

Originally Posted by flylock shox

One might say, as the SCC appears to have done, that the human officer is employing a tool to see through the clothes or backpack of the individual involved. I disagree, because that tool never has to 'look' into the backpack: the smell emanates from the backpack into the public realm, in the same way that a crack hose visible to the naked eye does.

That is where our opinion differs, I think of the dog exactly as a tool. It does not smell, and think "oh yah thats crack, I should sit down" then proceed to sit. It smells, and sits based on instinct formed through training. In a similar way that a machine would beep when it detected the presence of crack in the air, if such a thing existed.

I think that the plain view doctorine requires a certain amount of cognative reasoning to make it a fair rule. If you replace 'plain sight' with 'plain smell' and replace the officer with a dog you lose that reasoning ability and replace with with a mechanical response and in my opinion that what converts the rule from fair to unfair. The dog effectivley becomes a tool to see through people belongings, but specifically targetted towards drugs.

Originally Posted by flylock shox

And, just to clarify, officers cannot search for evidence incidental to an detention: they must have grounds to effect an arrest before they can do so.

sorry... I am not familiar with the Canadian rules of search.

[flylock shox]

Originally Posted by @theCBE

That is where our opinion differs, I think of the dog exactly as a tool. It does not smell, and think "oh yah thats crack, I should sit down" then proceed to sit. It smells, and sits based on instinct formed through training. In a similar way that a machine would beep when it detected the presence of crack in the air, if such a thing existed.

I think that the plain view doctorine requires a certain amount of cognative reasoning to make it a fair rule. If you replace 'plain sight' with 'plain smell' and replace the officer with a dog you lose that reasoning ability and replace with with a mechanical response and in my opinion that what converts the rule from fair to unfair. The dog effectivley becomes a tool to see through people belongings, but specifically targetted towards drugs.



sorry... I am not familiar with the Canadian rules of search.

And that's probably a good place to leave our back and forth discussion.

It is distinctly beer o'clock: time for all reasonable people to put their brains aside and get blotto.

[alltherage]

Yes! I don't want dogs to know I smoke pot, because I don't want the police to catch me. Seriously.

[CaramonLS]

Originally Posted by @theCBE

That is where our opinion differs, I think of the dog exactly as a tool. It does not smell, and think "oh yah thats crack, I should sit down" then proceed to sit. It smells, and sits based on instinct formed through training. In a similar way that a machine would beep when it detected the presence of crack in the air, if such a thing existed.

I think that the plain view doctorine requires a certain amount of cognative reasoning to make it a fair rule. If you replace 'plain sight' with 'plain smell' and replace the officer with a dog you lose that reasoning ability and replace with with a mechanical response and in my opinion that what converts the rule from fair to unfair. The dog effectivley becomes a tool to see through people belongings, but specifically targetted towards drugs.

sorry... I am not familiar with the Canadian rules of search.

What if a cop smells drugs inside a container (i.e. awful smelling pot), should he be allowed to execute a search based on that? So what exactly is the difference between that and using something which simply has a more sensitive nose?

The problem with your 'tool' argument is like saying a cop shouldn't be allowed to use anything which enhances a sense - like vision (i.e. glasses or contact lenses), since those aren't "natural".

If a cop was innocently walking down the street with a drug dog and it caught the scent of drugs - would the cop then be able to perform a search or would that also be illegal?

[RougeUnderoos]

Originally Posted by flylock shox

If these so-called searches can be performed without detaining a person, or interfering with them physically, then the fruits of those searches are proper grounds for conducting an arrest.

Monitoring phone calls and internet habits can be performed without detaining a person, or interfering with them physically. If they select people randomly (like the hypothetical people on the street that the dog encounters) and start listening in, should the fruits of those searches be considered proper grounds for conducting an arrest?

[calculoso]

Originally Posted by RougeUnderoos

Monitoring phone calls and internet habits can be performed without detaining a person, or interfering with them physically. If they select people randomly (like the hypothetical people on the street that the dog encounters) and start listening in, should the fruits of those searches be considered proper grounds for conducting an arrest?

If there is a suspicion that people who visit Child Porn sites, or those that phone Edmonton regularly, are doing something illegal and they are the only ones targeted (all people at the same place, akin to a Bus Depot or School) then your example holds. Otherwise, your example is completely irrelevant.

[RougeUnderoos]

Originally Posted by calculoso

If there is a suspicion that people who visit Child Porn sites, or those that phone Edmonton regularly, are doing something illegal and they are the only ones targeted (all people at the same place, akin to a Bus Depot or School) then your example holds. Otherwise, your example is completely irrelevant.

It is certainly relevant to his point that dog-sniffing is non-intrusive and not physical so it is therefore acceptable. That criteria is bogus.

And you use the word "suspicion". Where is the suspicion generated for random people walking down the street?

[8 Ball]

So basically, a sniffer dog can be used during a legal search, but cannot be used for grounds for a legal search?

[flylock shox]

Originally Posted by RougeUnderoos

It is certainly relevant to his point that dog-sniffing is non-intrusive and not physical so it is therefore acceptable. That criteria is bogus.

And you use the word "suspicion". Where is the suspicion generated for random people walking down the street?

To clarify: my point was based on the assumption that the smell emanating from drugs is dispelled into the public realm. To use the analogy of a phone call: tapping a phone line intrudes upon a private discussion between two people - an intrusion into what would otherwise be completely private matters. However, if the parties to the phone call happen to be speaking loudly, and a passerby on public property can overhear their conversation, well that's just too bad: there's no privacy interest in public property.

[flylock shox]

Originally Posted by 8 Ball

So basically, a sniffer dog can be used during a legal search, but cannot be used for grounds for a legal search?

That's a pretty astute way of summing it up.

The rulings suggest that when a dog smells an item, a search occurs. Searches of this kind can only happen incidental to a lawful arrest, i.e., when grounds for arrest have already been formed. Of course, if grounds for arrest already exist, there's probably no point in using a sniffer dog because the arresting officer can conduct a search incidental to the lawful arrest anyway.

[RougeUnderoos]

Originally Posted by flylock shox

To clarify: my point was based on the assumption that the smell emanating from drugs is dispelled into the public realm. To use the analogy of a phone call: tapping a phone line intrudes upon a private discussion between two people - an intrusion into what would otherwise be completely private matters. However, if the parties to the phone call happen to be speaking loudly, and a passerby on public property can overhear their conversation, well that's just too bad: there's no privacy interest in public property.

A "smell", such as it is, emanates from cellular and cordless signals.

That's going into the public realm just like the smell a person gives off, so long as you have the right tool (like a dog, or whatever contraption is capable of listening to cell phone conversations) sensitive enough to pick up on it.