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Dog sniff requires reasonable suspicion

Police can use a sniffer dog to search for drugs at a roadside stop, provided they have sufficient suspicion.

In R. v. Payette, 2010 BCCA 392, the accused was stopped at a random traffic checkpoint where a qualified drug detector dog handler and his dog were present. An experienced traffic officer took Payette’s licence and registration and asked the dog handler to conduct a walk-around sniff search of the vehicle based on the following observations:
* The vehicle was a newer model Volvo owned by a third party, not the driver Payette;
* The lone occupant, Payette, was unshaven and wearing a dark hoodie;
* Judging by the debris of water and coffee containers, the vehicle appeared to be “lived in.” There were also food wrappers from Tim Hortons, suggesting Payette was hitting drive through establishments;
* Payette was pale and his head was shaking; and
* There was a radar detector in the vehicle.

The dog indicated the presence of drugs and Payette was arrested. The car was searched and a suitcase containing 34 one-pound bags of marijuana was found in the trunk.

At trial in British Columbia Provincial Court the judge found the random traffic safety stop lawful; it was conducted for traffic safety purposes, not for a drug investigation or some ulterior purpose. He noted the dog sniff constituted a search and therefore police required a reasonable suspicion of criminal drug activity before the dog was deployed.

The officer had extensive experience in motor vehicle investigation and his observations supported having the vehicle sniff searched. No single observation provided a reasonable suspicion for deploying the dog, but taken together they were sufficient to establish a reasonable suspicion that Payette was involved in drugrelated criminal activity.

The positive hit provided reasonable grounds to believe Payette was committing a drug offence and, therefore, his arrest was lawful and the drugs were found in a search conducted incidental to arrest. There was no breach of s.8 of the Charter, the evidence was admitted and Payette was convicted of possessing marijuana for the purposes of trafficking.

Payette appealed to the BC Court of Appeal. He challenged the trial judge’s application of the “reasonable suspicion” standard rather than “reasonable and probable grounds” in deciding that the drug dog search at a traffic checkpoint was lawful. Furthermore, he argued that the judge erred in determining that the reasonable suspicion standard was even satisfied in this case and, because of the s.8 violation, submitted that the evidence should have been excluded under s.24(2).

h3. Reasonable suspicion v. reasonable & probable grounds

The reasonable suspicion standard was insufficient to justify the drug dog sniff in this case, Payette contended. Unlike sniff searches in a public bus terminal or high school as part of an ongoing criminal investigation, the roadside traffic stop search involved an arbitrary detention – permitted only for the specific purpose of road safety, not for conducting criminal investigations. In his view, a high standard, such as reasonable grounds for belief, was needed to do the sniff search. The court disagreed.

“The characteristics of a sniffer dog search… are no different in the context of a roadside traffic stop than in a bus station or school,” said Justice Neilson, speaking for the entire court. “The trial judge properly applied the reasonable suspicion standard in determining whether the drug detector dog was lawfully deployed in this case.”

However, the court ruled the trial judge erred in finding the reasonable suspicion standard, which has both an objective and subjective component, was satisfied. In assessing the objective component it is the cumulative import or collective effect of the factors that determines whether there is an objectively reasonable basis for the suspicion. These factors must also be viewed in the context of an officer’s background and experience in determining whether there were sufficient grounds existing to support a reasonable suspicion; in this case to reasonably suspect the accused was involved in drug-related criminal activity, thereby permitting a drug dog search.

The court concluded the six factors relied on by the officer were not capable of providing the required objectively discernable nexus between the accused and illegal drug activity.

Each of those factors taken on its own is innocuous and characteristic of many citizens driving the highways. (The officer) admitted as much. He conceded the (accused’s) beard and the fact he wore a hoodie were not noteworthy. He agreed a driver stopped by the police could be nervous for reasons unrelated to drug activity. He acknowledged that radar detectors are generally and legally used by the public to avoid speeding infractions, but said in his experience drug couriers also use them to keep track of police presence along the highways.

He agreed the (accused) wasn’t the only driver who was stopped at the road check with food wrappers in his car, but said that, in his experience, those transporting drugs typically obtain food at drive-through restaurants so they do not have to leave their vehicles unattended. He also said his experience led him to believe that people with a record or outstanding charges related to drugs often drive another person’s vehicle to avoid raising suspicion on a vehicle check. Nevertheless, vehicles are commonly driven by people other than their owners for a multitude of reasons (para. 23).

Even though the officer considered the cumulative picture each factor presented in the context of his 18 years of police experience as a basis for ordering the search, the six factors taken together were not capable of providing grounds for any objective suspicion of criminal drug activity.

“While I appreciate the objective reasonableness requirement must be viewed in the light of the investigating officer’s background and experience,” said Neilson, “deference to an officer’s intuition must not render the objective element of the inquiry meaningless.”

The court found the officer “ordered the search solely on subjective intuition born of his experience.”

The officer testified he did not have sufficient grounds to detain Payette for investigation once the checks on his vehicle and driver’s licence were completed. The standard of reasonable suspicion for investigative detention was the same as that for a drug detector dog search in this case; the purpose of further detention or a sniff search would both have been to investigate drug activity. The reasonable suspicion required to justify each would therefore have been identical.

The officer’s own evidence supported the view that he was uncertain whether he had met the standard of reasonable suspicion, thus the sniff search was unlawful and breached Payette’s s.8 rights. The marijuana was excluded as evidence, Payette’s appeal was allowed and his conviction set aside.