Stopped By A Sniffer Dog? Here’s What You Need To Know
Heading to a festival soon? Read this.
Whether you’re a music festival regular, or simply walked onto a platform of a city train station, chances are you’ve come into contact with a sniffer dog.
Despite being proven to be a woefully inaccurate way of detecting drugs — the most recent figures from NSW show that 63 percent of searches that are undertaken after a drug dog indication turned up no illicit substances, while in South Australia that number leapt to 82 percent — sniffer dog searches have become commonplace at nearly all major events across the country.
So what actually happens when you get stopped by a sniffer dog? What are you rights when it comes to police searches, and what should you do if they happen to find something?
We asked NSW Greens MP and anti-sniffer dog campaigner David Shoebridge to walk us through exactly what happens when you’re confronted by a sniffer dog. To keep up to date with all current information, follow the Greens’ initiative, Sniff Off.
First Off, Some Background Info
Police need to obtain a warrant to conduct a drug dog operation at events. To get that warrant, they need to convince a magistrate at a local court of the need for the operation. They might point to the fact that it’s a music festival and there’s lot of young people there, so drugs may be there too. Or they highlight that they’ve previously found drugs at that event.
No state or territory in Australia will allow an operation to take place unless police have a warrant. In some areas of major cities — like Kings Cross and George Street in Sydney, as well as all licensed premises, and on the public transport network — police do not need a warrant to conduct drug dog operations.
How Do Police Pick Which People To Search?
“Once they set up their drug dog operations, the police then use their own peculiar indicators to work out who they will actually search,” Shoebridge says. “The standard police line is that if a dog sits down next to you, that’s a positive indication.”
But of course, given the notorious unreliability of dog indications, police need additional “reasonable suspicion” in order to search you. “They use the dog indication, together with other mysterious, unidentified information, to choose to search you,” says Shoebridge.
“And the reason that they keep it vague like that is because they know that the stats are against them. And if they were just relying upon the drug dog’s indication, then they may not have a reasonable grounds to search you.
“Arguably just a drug dog indication by itself is not reasonable suspicion. So the police then say, ‘Oh it wasn’t just the drug dog, it was the fact that you were dressed like someone who uses drugs, or you were hanging out at a music festival where we know people use drugs. Or you just had a kind of dodgy look. Or you looked panicked.'”
In short, the police need reasonable suspicion to be able to search you — and this is determined by a drug dog indication, as well as other mysterious indicators.
What Should You Do When They Ask To Search You?
“Once the police say ‘Well we want to search you’, my strong recommendation is you tell them that you don’t consent. You don’t say ‘I consent to a search’, you should say ‘I don’t consent to a search, but I’ll let it happen.’
“I would allow police to search you,” Shoebridge additionally stresses. “Because if you resist police and they have a lawful basis for searching you, you could find yourself facing some very serious criminal charges. You don’t have to consent to the search, but you can say to the police, ‘Am I required to let you search me?’ And if they say yes, then say ‘Well, can you note that I don’t consent? But I’m going to allow it to happen.'”
The reason for this is that if you consent to a search, then you are waiving your important legal rights — including the right to challenge the legality of the search. As soon as you consent to the search, you’ve essentially agreed that the search is lawful.
“If the police say ‘Alright, can I look what’s in your bag?’ And you say ‘Oh yeah sure.’ You’ve consented, and you lose your legal rights,” says Shoebridge. “But if you say ‘Well actually no, I’d rather you didn’t look in my bag. And they say ‘Well I’m directing you to show me what’s in your bag’, you can reply ‘Okay, I want you to know that I don’t consent.’
“Then you know, you’ve protected your legal rights. At no point should people resist. Because as soon as you resist, you might find yourself up on a resist police or an assault police charge and that can be very serious criminal matter.”
How Does The Search Happen?
Once you’ve allowed the search to be undertaken, police can go through your pockets, and ask you to remove your coat and a hat. They can instruct you to remove your shoes, they can look in your hair, and ask you to move your hair around so they can look through it.
They can also ask you to open your mouth — but they cannot put their fingers or anything else (like a tongue depressor) in your mouth. They can also search through your bag or whatever else you’re carrying with you.
“This can be very intrusive and humiliating,” says Shoebridge. “Having your coat taken off, your hat taken off, your shoes taken off, your backpack tipped out in front of everybody at the start of a music festival. And it’s often quite intimidating, because the standard police operations say that with every drug dog that’s operating at a music festival, they have to have 12 uniformed police. So there’s a lot of police around you.”
What Happens After The First Search?
If they conduct the first search and they don’t find any illicit substances, you should be able to just go on your merry way. But that’s not always what happens: “In thousands of cases that I know of in New South Wales, it’s not the end of it,” says Shoebridge. “Having found nothing with their first search, the clothed search, the police can then determine to strip search you. And we’ve seen the number of strip searches in New South Wales really sky rocket.”
The police are only meant to conduct a strip search if they believe “the seriousness and urgency” of the circumstances make it necessary to do so.
“I would’ve thought that on many occasions during a music festival, that test would be pretty hard to satisfy,” says Shoebridge. “Again, that’s why you shouldn’t consent, that’s why you should retain your legal rights. But if the police form that view that it’s serious and urgent, then they can direct you over to somewhere with some privacy and then undertake a strip search. They’re not allowed to do it in public.”
Usually the police will have a private room, or a van, set up at the event where they can conduct strip searches. You’ll be directed into that room and instructed to take your clothes off. The search is only meant to be undertaken by somebody of the same gender as the person being searched. You are allowed to ask to take a support person with you — and Shoebridge advises that you should do so if possible.
As Shoebridge notes, the police have a very binary view of gender — they’ll really only take into account ‘male’ or ‘female’.
“The police are then allowed to look you all over, they are not allowed to look inside any of your body cavities,” Shoebridge says. “Again they can ask you to open your mouth, but they’re not allowed to poke inside your mouth.
“They’re not allowed to look inside your body cavities and technically they’re not allowed to ask you to bend over — but they can look around your genitals, and they can look at your backside. And sometimes they can determine from that whether or not you’re concealing something. But they are not allowed to poke around inside you, or actually touch you in any way.”
Following The Strip Search
If the police still haven’t found anything, you are allowed to go on your way. “You can put your clothes back on having been appallingly humiliated,” Shoebridge says. “And you can go and enjoy your music festival. I would recommend people get advice about their legal rights if that’s happened to them — and they thought there was no good basis for it.”
If they do find something, they can arrest you and charge you accordingly under the Drug Misuse and Trafficking Act — and the penalties can be severe, ranging from fines to lengthy jail time.
If it’s a very small amount — say one pill or a small amount of cannabis — you could be issued a caution. But there’s no hard and fast rules regarding the issuing of cautions — meaning that it’s entirely up to the presiding police officer.
“There’s been a recent increase in the police’s power to issue cautions,” notes Shoebridge. “And you would hope if you’re just found with something that is so obviously for personal consumption, that you would get a caution. But again it’s up to the officer — whatever that police officer has had for breakfast that morning. And we know that these discretions work against minorities — such as Aboriginal people or young people or people of colour. They’re more likely to be searched in the first place, more likely for the matter to escalate to court, and once it goes to court they’re more likely to have custodial sentence.”
In certain circumstances, the police can arrest you even if they haven’t found anything. “If they have some other criminal intelligence, for example if somebody has said that you’ve hidden a stash of drugs, they can arrest you for the purposes of further questioning. And they can hold you for six hours.”
If The Police Decide To Charge You
“If you’re being charged with a very low level possession charge, the police probably shouldn’t be arresting you for that, because they don’t need to detain you for the purpose of giving you a court attendance notice. You’ll probably only be arrested, formally arrested, if it’s a more serious offence — or if the police just want to arrest you and make your day slightly worse.”
It’s important to note that being charged and being arrested are two very different things. “Being charged means you’re being brought before the court, because the police believe they have a case against you for a criminal offence. Once you’re charged, you’re given a court attendance date, then you’re gonna be dealt with in accordance with law by a judge.”
Being arrested is much more severe, and has an immediate impact. “It means you’re in the custody of the police officer,” Shoebridge says.”That means they can put you in a cell. They restrict your liberty. And they can prevent you from going home. Or they can put you in the back of a paddy wagon and just hold you for a number of hours.
“Police aren’t meant to use the arrest powers unless it’s necessary. So if someone is compliant and they’ve just been issued with a caution or they’ve been issued with a low level possession charge, then they shouldn’t be arrested. It’s not for the police to hand out the penalty, it’s for a court to hand out the penalty. But quite often police will just arrest you. Because they can.”
Things To Remember
“The police’s powers are really intrusive,” Shoebridge warns. “And they are very hard to challenge. Be aware of your rights, don’t be aggressive. Don’t consent to things you don’t want to consent to. But, equally, don’t prevent the police from going about their business because you may face, you know much more serious consequences.”
Jules LeFevre is the Music Editor of Junkee. She is on Twitter.