Dog sniff a less demanding standard than reasonable belief
By Mike Novakowski
Reasonable grounds to suspect is near the lower end of the probability continuum, Saskatchewan's top court has ruled.
In R. v. Mackenzie, 2011 SKCA 64 police made a U-turn and caught up with the accused two kilometres later to warn him he was speeding. Mackenzie pulled his vehicle over to the side, despite no direction to do so, and without apparent prompting said he was "sorry" and admitted to speeding.
The officer confirmed the stop was for speeding, asked for license and registration and noted Mackenzie's hands were shaky and trembling, he was sweating, breathing very rapidly, his carotid artery was pulsing very rapidly and his eyes had a pinkish colour. When asked if he was okay Mackenzie pointed down to some medication on the console, said he had asthma and asked to take it.
By Mike Novakowski
Reasonable grounds to suspect is near the lower end of the probability continuum, Saskatchewan’s top court has ruled.
In R. v. Mackenzie, 2011 SKCA 64 police made a U-turn and caught up with the accused two kilometres later to warn him he was speeding. Mackenzie pulled his vehicle over to the side, despite no direction to do so, and without apparent prompting said he was “sorry” and admitted to speeding.
The officer confirmed the stop was for speeding, asked for license and registration and noted Mackenzie’s hands were shaky and trembling, he was sweating, breathing very rapidly, his carotid artery was pulsing very rapidly and his eyes had a pinkish colour. When asked if he was okay Mackenzie pointed down to some medication on the console, said he had asthma and asked to take it.
The officer could see no noticeable decrease in Mackenzie’s breathing or other changes after he took the medication. Mackenzie said, when asked, that he was heading home to Regina from Calgary but seemed to be somewhat confused on when he had traveled to Calgary. A computer check came back negative but the officer still suspected Mackenzie was involved in a Controlled Drugs and Substances Act (CDSA) offence. He based this on his observations and experience, which included a standardized field sobriety-testing (SFST) course, pipeline and advanced pipeline training and more than 5,000 traffic stops involving 150 discoveries of drugs.
He asked Mackenzie to step out of the vehicle, told him he was being detained for further investigation under the CDSA and advised him of his Charter rights. A drug detection dog sniffed around the vehicle, indicated on the back hatch area and Mackenzie was arrested and again given his rights. A vehicle search turned up 31.5 pounds of marijuana in three gift-wrapped packages in the rear hatch area. Mackenzie was charged with possessing marijuana for the purpose of trafficking.
A Saskatchewan Court of Queen’s Bench judge properly identified a “reasonable suspicion” as the standard for conducting a sniff-search using a drug dog. However, Mackenzie’s very high level of nervousness, his pinkish eyes – which in the police officer’s opinion was consistent with the use of marijuana – and the course of travel from Calgary (a source of drugs) to Regina (a known destination of sale) did not meet this standard.
“There appeared to be no other signs that indicated the presence of illegal drugs such as plain sight or smell… at best he was acting on a hunch,” the judge found, adding that it was “quite conceivable that the observations of the accused claimed to have been noticed by (the officer) were enhanced after the drugs were located.”
The sniff-search was unreasonable and breached s. 8 of the Charter (unreasonable search and seizure). The marijuana was excluded under s. 24(2) and, without it as evidence, there was no case and Mackenzie was acquitted. The Crown appealed to the Saskatchewan Court of Appeal.
Although using a sniffer-dog as an investigative technique constitutes a search under s. 8 of the Charter, police officers can conduct sniff-searches without prior judicial authorization on a “reasonable suspicion” standard.
“A peace officer may deploy a sniffer-dog to search a vehicle where that officer has reasonable grounds to suspect that the presence of a controlled substance within the meaning of the (CDSA),” said Justice Caldwell for the unanimous court. “The standard of reasonable suspicion is less demanding than that of reasonable and probable grounds; however, there is no comprehensive set of evolved criteria which control whether the standard has been met. Each case turns on its own facts.”
The court continued:
The assessment of the reasonableness of a sniff-search requires a thorough understanding of the standard to be met and of the circumstances leading to the search. The standard of reasonable suspicion is near the bottom end on the continuum of probability (with proof “beyond a reasonable doubt” at the other). In any case, the court must undertake a subjective and objective analysis of whether the state has met its burden. For a sniff-search, this analysis would have the court ask:
(a) Did the peace officer subjectively believe that there were reasonable grounds to suspect the accused was in possession of a controlled substance?
(b) Were there sufficient objective grounds to reasonably suspect the accused was in possession of a controlled substance? (at para. 19).
Was the standard met?
The appeal court accepted that the trial judge concluded the officer believed he had proper grounds to deploy the sniffer-dog (subjective analysis). As for the sufficiency of the objective grounds to support a reasonable suspicion that Mackenzie possessed a controlled substance, the Crown argued, in part, that the trial judge’s standrard was too demanding.
In deciding whether a suspicion is reasonable a “judge must examine the factual circumstances leading to the sniff-search and whether, considered with an appreciation of the peace officer’s training and experience, those circumstances could have reasonably given rise to a suspicion of possession of a controlled substance,” said Justice Caldwell.
The scrutiny of warrantless searches, done after the fact, must be rigorous. However, the analysis of a reasonable suspicion does not involve a search for motive. It is also important that a trial judge consider the officer’s experience and training when determining the objective existence of a standard of probability like reasonable suspicion or reasonable and probable grounds. Experience and training must also be carefully assessed in the context of the standard of reasonable suspicion.
The officer had more than a hunch. He carefully articulated the factors leading him to form a suspicion that Mackenzie was involved in criminal activity and why he believed he possessed a controlled substance:
His erratic driving and overreaction to police presence in slowing to 20 km/h below the speed limit and pulling over before being signalled to do so. This was behaviour the officer’s experience taught him to infer that the accused might be hiding something from police;
His extreme nervousness, which was “probably some of the highest nervousness that (he’d) seen in a traffic stop.” Also, when the accused was told of the relatively minor reason for the stop, his level of nervousness did not diminish. This was behaviour which, in the officer’s experience, further indicated the accused had something to hide;
His hands were shaky and trembling when handing over his licence and registration, indicia of nervousness and, in the officer’s training, a symptom of marijuana use;
He was sweating with beads of sweat forming on his forehead, indicia of excessive nervousness;
He was breathing very rapidly, his chest moving in and out very quickly, which was audible when speaking, also indicia of excessive nervousness;
His carotid artery was pulsing very rapidly, a sign of a high level of nervousness and something the officer had experienced in traffic stops “where criminality was involved”;
His nervousness was significant enough to prompt the officer to inquire about his health, but his rate of breathing and other indicia of nervousness did not noticeably decrease after he took his asthma medication. (i.e. absence of a discernible reason for symptoms of nervousness);
His eyes had a pinkish colour to them, a symptom known to the officer by training and experience to be associated with marijuana use;
He seemed confused as to his travel itinerary, something the officer had observed in individuals trying to avoid detection of a crime by hastily making up a story but then forgetting the details;
He was travelling from Calgary (a city known to the officer as a distribution point for drugs) to Regina (a city known to the officer as a destination point for drugs) along the Trans Canada Highway (a route known to the officer as being used by drug couriers);
He was on a quick turnaround trip. In the officer’s experience, drug couriers make quick turnaround trips; and
Neither CPIC or Police Information Retrieval System (PIRS) databases contained any record of the accused. There was no discernible reason for the extreme degree of nervousness exhibited.
All of these factors “synergistically” caused the officer to suspect the presence of a controlled substance but the trial judge simply reduced these factors to only three (i.e., “very high level of nervousness,” “pinkish hue of the driver’s eyes” and “course of travel”). The latter two were then characterized as an “opinion,” unsupported by evidence and the inferences the officer drew were discounted. In doing so, “the judge failed to appreciate the constable’s issue-specific knowledge, training and experience and thereby ignored the probative value of the constable’s evidence as informed opinion,” the court said.
The constable’s testimony about the factors that led him to draw the overall inference that drugs might be present in (the accused’s) vehicle must be seen and weighed not in terms of unsubstantiated opinion, but with an appreciation of (the officer’s) training and experience.”
Nervousness, a natural human condition observable, describable and appreciable (or objectively verifiable) by anyone, required an interpretation by the officer. Mackenzie was “extremely nervous,” probably some of the highest nervousness the officer had ever seen in a traffic stop:
As a factor unto itself, nervousness alone might not ground a reasonable suspicion of criminal activity; but here, the constable grounded his suspicion on more than the existence of nervousness. (The officer) also testified to (the accused’s) erratic driving (an overreaction to police presence), to the extreme degree of (his) nervousness, to the absence of abatement in the degree of nervousness given the relatively insignificant reason for the traffic stop and to the absence of any apparent reason for such a high degree of nervousness. In this sense, (the officer) drew upon his experience and training to contextualize (the accused’s) nervousness, which lent a tenor to that nervousness; one with the shade of potential criminal wrongdoing on the part of (the accused).
Furthermore, the constable said his experience and training suggested that an individual with a “pinkish” eye colour might have recently consumed marijuana. On cross-examination, the constable testified that while use of marijuana does not necessarily mean an individual is transporting marijuana, in his experience, “people that use marijuana usually have marijuana.”
Logically, however, not everyone who exhibits pinkish eye colour has recently used marijuana, let alone is in the process of transporting drugs and the constable did not suggest otherwise; nor is it likely that everyone who has recently used marijuana is in possession of it, but when the standard is reasonable suspicion, the law does not require hard certainty as to the inferences drawn by a peace officer.
Even where equally or even more persuasive inferences may be drawn from the observations, a judge may find that the peace officer’s inferences, when considered with an appreciation of the officer’s training and experience, are reasonably supported by the factors articulated. A trial judge should be reluctant to discard such inferences as wrongly drawn without some analysis of why they were not appropriate.
In this case, it was also reasonable to place all of the constable’s observations and inferences within the context of his knowledge that drug couriers use the TransCanada Highway for quick turnaround trips when transporting drugs from Calgary to Regina. While the circumstances might not have suggested the presence of drugs to someone not having (the officer’s) training and experience and while there may be other plausible and innocent explanations for the pinkish eyes and trembling hands observed by the constable, those factors support a suspicion of potential criminal wrongdoing and, more importantly, wrongdoing involving drugs (paras. 34-36).
Although close to the line, the constellation of objective factors in this case were enough for the officer to reasonably suspect that Mackenzie unlawfully possessed a controlled substance. The reasonable suspicion standard was satisfied. The warrantless sniffer-dog search of the vehicle’s exterior was reasonable, thus the subsequent physical search pursuant to Mackenzie’s arrest was permitted and the marijuana was admissible.
The Crown’s appeal was allowed and a new trial ordered.