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Consider factors supporting dog sniff together

In determining whether police have sufficient grounds to use a drug sniffing dog, the test is not to look at innocent explanations for each individual factor but to step back and view the evidence as a whole. 

In R. v. Chehil, 2011 NSCA 82, the accused flew overnight on a Westjet flight from Vancouver to Halifax. He had no reservation but simply walked up to the ticket sales counter alone and paid cash, checking one locked suitcase. 

A special police team, tasked to detect the flow of illegal drugs into the Halifax International Airport, consulted with local airline agents to identify travelers displaying suspicious patterns by examining the airline’s manifest. They noticed that Mandeep Singh Chehil matched several of their established criteria, which collectively, in their view, provided enough grounds for a dog sniff search. This included:

• Chehil was travelling on a flight from British Columbia, which police knew as a source province for drugs.
• His ticket was purchased with cash. The officers knew from experience and training that drug couriers are paid by suppliers in cash and use cash to purchase their tickets so as to avoid a paper trail.
• He was flying on an overnight flight. Drug couriers typically prefer overnight or red-eye flights because of the reduced police presence and lower cost. 
• The flight was one-way with only one stop over and had no change of aircraft, meaning the luggage loaded at the place of origin would remain in the plane until it reached its destination.
• He was travelling alone. In the context of drug investigations travelling alone means that fewer people know about the travel arrangements, reducing the risk of discovery either by police or other criminals wanting to steal the product. Also solo travel is less expensive.

When the flight arrived in Halifax, Chehil’s suitcase, along with nine other randomly selected bags, was set aside for sniffing by a police dog in a secure area. Police directed their Labrador retriever, specially trained to detect the scent of drugs, to sniff the bags and it indicated on Chehil’s suitcase. He was arrested after removing it from the public carousel, taken to a private room and his bag was forced open and searched. Three kilograms of cocaine was found and Chehil was charged with possession for the purpose of trafficking.

At trial in Nova Scotia Supreme Court Chehil argued that the dog sniff and subsequent suitcase search as an incident to the arrest were unlawful. The trial judge agreed. As for the sniff search, the judge felt police did not have the requisite reasonable suspicion to justify using the dog, but rather were merely acting on an “educated guess”. 

He found that the factors police relied upon, even when considered cumulatively and in their totality, did not provide objectively reasonable suspicion that the suitcase contained drugs. In his view, only the cash purchase of a ticket at the last minute could perhaps be viewed as suspicious, but the rest of the factors were equivocal and clearly had innocent explanations. He also noted that police could have taken additional steps to buttress their grounds for suspicion, such as speaking to Chehil and determining the reason for the cash purchase, one way travel or why he was travelling alone. 

“Exculpatory, neutral or equivocal information would appear to not have been considered,” said the judge. “The cumulative effect of the various factors did not, in my opinion, establish a reasonable suspicion to believe that (Chehil) was involved in criminal activity.” 

Since the sniff search was unlawful, the grounds for arrest evaporated. 

“In the present case the search wasn’t based on the reduced standard of reasonable suspicion but rather on speculation,” said the judge. “Accordingly the search wasn’t lawful and the arrest which followed was unlawful. I am not satisfied that forcing open (Chehil’s) suitcase was a search incident to a lawful arrest.” 

The search was unreasonable and, as a result, the evidence obtained from the <s. 8> Charter breach was excluded under s. 24(2). Chehil was acquitted.

The Crown challenged the ruling to the Nova Scotia Court of Appeal arguing, in part, that both the sniff search and search of the suitcase incident to arrest were lawful. In framing the questions to be answered in this case, Chief Justice MacDonald, authoring the court’s unanimous judgment, put it this way:

(T)he police had to meet certain standards to justify their actions. For example, to justify the sniff search they required only a “reasonable suspicion” that the suitcase contained illegal drugs. This is because such a search would be less intrusive. However, to justify (the accused’s) arrest and incidental search of the suitcase, which is obviously more intrusive, the police required the higher standard of “reasonable and probable grounds” to believe that the suitcase contained illegal drugs (para. 22).

Sniff searches

Police are justified in sniff searching a traveller’s luggage as long as they act on a “reasonable suspicion” that a crime is being committed; more than a hunch but less than the reasonable and probable grounds standard. In addition to the officer’s personal opinion, the reasonable suspicion standard imports an element of objectivity. A court must be able to make an independent assessment of the facts upon which the police officer bases their suspicion.

The court disagreed with the trial judge that police lacked the requisite reasonable suspicion to use the drug sniffing dog:

(W)hen I view the “constellation of objectively discernable facts,” I see reasonable grounds for suspicion. In other words, I see ample uncontested evidence to justify a reasonable expectation that (the accused) was engaged in criminal activity. To be specific, consider the following evidence, all of which, based on police intelligence, is consistent with the flow of illegal drugs:  

However, we must step back and look at the “constellation” of factors. In other words, our task is not to consider each factor in isolation to determine if there may be innocent explanations… (I)nstead of looking for a constellation of factors, (the trial judge) appeared to look at each in isolation and in doing so, dwelled on the corresponding innocent explanations (paras. 36-38).

MacDonald found it was a mistake for the trial judge to consider that police ignored the potential litany of innocent explanations. Although there were clearly innocent explanations for each factor they relied upon, the test is whether “these factors coalesced into reasonable suspicion, despite a potential innocent explanation for each.” 

As for police taking additional steps to support their grounds for suspicion, they could have, but it wasn’t necessary. “Could the police have done more?” asked MacDonald. “By all means. However, again, that is not the question. Instead, the question is whether in this case the police did enough to establish a reasonable suspicion. In my view they did.” 

Thus, the officers had the requisite reasonable suspicion to direct the luggage sniff.

Arrest and suitcase search

Since police searched the accused’s suitcase without a warrant, it was presumptively unreasonable. In order for the search to be reasonable, they would need reasonable and probable grounds to believe that the suitcase contained illegal drugs and thus arrest the accused. The police dog was trained to detect the smell of drugs and its handler testified to its reliability. The dog’s positive indication on the suitcase, along with the accused’s other suspicious travel patterns, provided the necessary grounds to justify the arrest.

“I conclude that the police, armed with the suspicious indicators justifying the sniff search, together with the added results from this search, had reasonable and probable grounds to believe that (the accused) was in possession of illegal drugs,” said MacDonald. 

“His arrest was therefore justified, thus making it reasonable for the police to search his suitcase.” 

Thus, there were no Charter breaches in this case and therefore it was unnecessary to conduct a s. 24(2) analysis.

The Crown’s appeal was allowed and a new trial ordered.