Is The Police Use of Drug Sniffer Dogs Legal in WA?

The use of sniffer dogs by police as a tool for drug detection is a contentious issue, with critics arguing that sniffer dogs are unreliable, often leading to unwarranted searches based on false positives.

The following outlines the legality of police use of drug sniffer dogs in Western Australia including when they can be used, when you can be searched and possible charges if you are found in possession of illicit drugs.

When Can WA Police Use Drug Sniffer Dogs?

The rules regarding the police use of drug sniffer dogs in WA are outlined in various pieces of legislation authorising their use.

Under section 17 of the Criminal Investigation Act 2006 (WA), an officer is authorised to use an animal to assist in exercising his/her powers if the animal has been trained for this specific purpose and the use of the animal is reasonably necessary in the circumstances. This includes the use of drug sniffer dogs, although their authorised use is still dependent on legal thresholds.

Under Part 4A of the Misuse of Drugs Act (WA), WA Police are authorised to use drug sniffer dogs within “drug detection areas” to assist in the searching of both persons and vehicles. A ‘drug detection area’ is a public place authorised by a senior police officer to be used for drug detection searches.

Police have broad powers when utilising police sniffer dog searches. Under section 20H of the Act, a person may be detained for a ‘reasonable period’ in order to conduct the sniffer dog search. Further, under section 20G of the Act, a police officer is also authorised to do the following whilst conducting a search with a drug sniffer dog:

• require the driver of the vehicle to stop the vehicle;
• enter and search any part of the vehicle;
• detain the vehicle for a reasonable period in order to search the vehicle;
• move the vehicle to a public place in the relevant BSA suitable to search the vehicle;
• require the driver, or a passenger, of the vehicle to open any part of the vehicle;
• require the driver, or a passenger, of the vehicle not to leave, or to remain in, the vehicle; or
• take any action that is reasonably necessary in order to search the vehicle.

More expansive powers also exist under Part 4B of the Act, which outlines broad powers by WA Police to utilise drug sniffer dogs in ‘border search areas’ – which are areas identified as key locations for drug importation or exportation.

Is A Positive Drug Sniffer Dog Response Sufficient For A Search?

WA Police can conduct a search of a person, property or vehicle only if specific circumstances are met. Generally, a search may be carried out:

• If a person consents to the search;
• If police obtain a valid search warrant; or
• If legislation grants them the authority to search without a warrant or consent.

In regard to searches for illicit drugs under the Misuse of Drugs Act 1981 (WA), a search can only occur if a police officer has a suspicion on reasonable grounds that you have committed an offence, including that you have illicit drugs in your possession.

There are open questions still to be determined by the courts as to whether a positive sniffer dog response, in itself, is sufficient to meet the legal threshold of suspicion on reasonable grounds for a search. Courts have previously questioned whether a positive indication by a sniffer dog alone is sufficient to justify a search, particularly given the well-documented issues with false positives. There is a strong argument that police should draw upon more factors than merely a positive sniffer dog response in order to reach the threshold of ‘reasonable suspicion’ for a search.

Given the lack of legal clarity, it is recommended that individuals who are about to be searched following a positive sniffer dog response state clearly that they do not consent to the search and ask the relevant officer what legal authority they are relying upon, but comply if the police proceed. This preserves your legal right to challenge the search later.

When conducting a search, police must identify themselves, stating the reason for the search as well as the legal basis for their actions. Strip searches must only be conducted by an officer of the same sex or a doctor, and only if deemed necessary. Police are permitted to use reasonable force, which may include causing property damage if necessary. If a person believes excessive force was used, they can lodge a complaint, documenting any injuries, damage, or misconduct.

What Could You Be Charged With?

If you are searched following a positive sniffer dog response and an illicit drug is found in your possession, you may be charged with a simple drug possession offence under section 6(2) of the Misuse of Drugs Act 1981 (WA). The maximum penalty for this offence is a fine of $2000 and/or imprisonment for up to 2 years. However, first time offenders may be able to take advantage of relevant diversion programs that focus on education and rehabilitation rather than punishment.

More seriously, if you are found in possession of a "trafficable quantity" of drugs, you may be charged with intent to sell or supply under section 6(1)(c) of the Act. The maximum penalty for this offence is life imprisonment (for large quantities) or up to 25 years imprisonment and/or a $100,000 fine for other quantities.

Need Legal Advice?

If you are facing allegations of drug possession or intent to sell or supply, it's crucial to obtain legal advice early on in your matter to ensure your rights are protected.

Andrew Williams is an experienced Criminal Lawyer and Barrister who can provide you with expert legal advice in relation drug offences in Western Australia. Andrew offers a range of criminal law services and traffic law services in Perth, Fremantle and throughout Western Australia. He has the experience to guide you through your legal matter whilst working towards achieving the best outcome for your case.

Call Now: (08) 9278 2575

This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.