JHJones wants to know whether the police have the right to strip search you after a sniffer dog indicates you may be carrying drugs
Earlier this month the police in Nantwich went into licensed premises with a sniffer dog and detained 58 people who a sniffer dog had "indicated" may be carrying drugs. They were handcuffed, stuck in a police van and taken to a police station where they were strip-searched.
Only four people out of the 58 were found to be carrying drugs, two were given street warnings and two cautions. The inspector in charge of the operation claims that the dogs give an indication even when the person has just been in the presence of a drug user. Can the police justify hauling people off in handcuffs and strip searching them when they've got a 93.2% failure rate?
Under section 23 of the Misuse of Drugs Act 1971 a police officer who has reasonable grounds for believing that a person may have illegal drugs on them may search that person and, if necessary, detain them for the purpose. The codes of practice made under the Police and Criminal Evidence Act 1984(PACE) give guidance to officers on the conduct of searches.
Paragraph 3.5 of code A of PACE makes it clear that the only items of clothing that a person being searched can be required to take off in a public place are coats, jacket and gloves. (There are specific circumstances where people can be required to remove head coverings and shoes as well but I won't go into those here.) Additionally, for the purposes of the search, officers are allowed to feel inside pockets of the person's outer clothing, around the inside of their collar, socks and shoes.
Paragraph 3.6 provides that if a more thorough search is required, involving the removal of more that these items of clothing, this must be done in a private place – a police van will suffice – and by an officer of the same sex as the person searched.
If a search involving the exposure of intimate body parts is justified – and PACE makes clear that this should not be routine – this should only be done at a nearby police station or other place which is out of the public view. A police van cannot be used for this type of search. There are further requirements as to the conduct of such searches set out in paragraph 11 of annex A to code C. They can include a visual examination or the person's genital and anal areas but no physical contact with these areas is allowed as part of these searches.
So the police in Nantwich will doubtless argue
(1) that their sniffer dogs picking out each of these 58 people gave them sufficient suspicion to justify searching them;
(2) that section 23 gave them the power to detain (not arrest) them for that purpose; and
(3) that the nature of what they were looking for and experience of where people hide drugs justified strip searches, which
(4) the codes required them to carry out in a police station.
I won't argue with steps (2), (3) and (4). What is debatable is whether an indication by a sniffer dog is sufficient to found a reasonable suspicion that you have drugs on you. To an extent the figures quoted here speak for themselves: of the 58 people searched only four were found to have drugs on them, a hit rate, as JHJones points out, of just 6.8%. Moreover, as Inspector Hassall is quoted as saying in one of the articles, one man having taken cocaine earlier in the evening may have been enough to "contaminate" all the people he was socialising with. Hauling someone out of the pub on their night out, detaining them for a period (I should imagine) of at least half an hour, very likely a lot longer, and subjecting them to a strip search must amount to an interference with that person's right to respect for their private life protected by article 8 of the European Convention on Human Rights and our Human Rights Act. (In a case Liberty was involved in, the House of Lords held that a regular street stop and search would not normally engage article 8 but the searches described here were far removed from those.) How can such steps be considered proportionate when it is so easy for a sniffer dog to get it wrong? This reeks of heavy-handed, gesture policing.
But this case raises another issue. Is it possible that when a sniffer dog checks you out that itself amounts to a search (which, if there are no reasonable grounds to suspect you, would be unlawful)? One might argue that bodily contact is an essential element of a search. But, the PACE Codes prohibit bodily contact in the conduct of strip searches; it's not an essential element there. Further, aren't I being searched if I walk through an airport scanner or a knife arch? Couldn't it be said that the essence of a search is that it reveals something that is not obvious to the naked eye or other human senses?
In an Australian case someone successfully argued that he was (unlawfully) searched by a sniffer dog. The decision was, however, overturned on appeal, the court finding that the dog indicating that the man had drugs on him was not itself a search but was sufficient to give the dog's controller grounds to conduct a search. The dog, in effect, provided the sense of smell that its human master didn't have.
I imagine that the courts here would follow the same reasoning but it might be worth attempting to make the argument - particularly where a sniffer dog, rather than being positioned somewhere that lots of people walk past – typically by a ticket barrier – is led round by its minder and directed at individuals.
guardian.co.uk, Monday 6 July 2009 14.34 BST
Source - http://www.guardian.co.uk/commentisfree/libertycentral/2009/jul/06/sniffer-dogs-drug-searchs