QUESTIONS of LAW RESERVED (NO 3 of 1998) No. SCGRG-98-87 Judgment No. S6696

[1998] SASC 6696

QUESTIONS OF LAW RESERVED TO FULL COURT
(NO 3 OF 1998)

PURSUANT TO SECTION 350(2)(A) OF CRIMINAL LAW CONSOLIDATION ACT, 1935

R v HOARE

Full Court
Coram:  Prior, Olsson and Williams JJ

Olsson J  (ex tempore)

These are two short, but important, questions reserved for the consideration of this Full Court by a District Court Judge, at the direction of another Full Court dated 20 March 1998. The direction was given during the pendency of a trial before the learned Judge, pursuant to the provisions of section 350 of the Criminal Law Consolidation Act, 1935.

The relevant facts giving rise to the questions are not in dispute.

The police were in receipt of information to the effect that cannabis was frequently carried by bus from South Australia to the eastern states.  They accordingly established an operation at the Department of Transport weighbridge on the Sturt Highway at Blanchetown, whereby passenger bus operators would be requested to permit them to conduct random bus searches.

On 24 March 1997 the accused Hoare was a passenger on a McCafferty’s coachline bus travelling from Adelaide to Sydney.  The bus compulsorily stopped at the Blanchetown weighbridge to be weighed.  Pursuant to the above operation, police officers approached the driver and obtained his permission to allow them to enter the cabin and luggage compartment of the vehicle with a sniffer dog, trained to detect the presence of cannabis.

The sniffer dog entered the luggage compartment of the bus and gave a positive response to a suitcase stored in it.  A police officer removed the suitcase from the luggage compartment, with the concurrence of the bus driver.  The driver identified the accused as its owner.

A police officer spoke to the accused.  He said to him that he had reasonable cause to suspect that the suitcase contained an illegal drug.  He asked whether the accused had seen the suitcase before.  When the accused denied having done so the bus driver challenged him, whereupon the accused admitted the suitcase was his, that it contained cannabis and that he was a drug courier.

Acting pursuant to section 68 of the Summary Offences Act, 1953, the police then opened and searched the suitcase.  It was found to contain 5.32 kilograms of cannabis.

It is not disputed that, although the police had the permission of the bus driver to search the luggage hold of the bus, no permission was sought or obtained from the accused or any other passenger for the sniffer dog to smell near and adjacent to their luggage whilst it was in the luggage compartment.

According to the declaration of the bus driver, the accused boarded the bus at Salisbury.  He handed the suitcase to the driver, who tagged it and placed it in the near side cargo bin of the bus.  The plain inference is that, in the ordinary course, the suitcase and other passenger luggage would remain in the cargo bin under the control of the driver, until, ultimately, he re-opened the bin and returned the luggage to passengers at the conclusion of their journey.

At trial it was argued before the learned trial judge that the sniffing of the accused’s suitcase by the police dog was part and parcel of the act of searching it; and that, absent the prior consent of the accused to that activity, the search was unlawful - because the police officers had no reasonable suspicion to warrant a search, as required by section 68 of the Summary Offences Act and section 52 of the Controlled Substances Act.

Having heard evidence and argument the learned trial judge expressed his conclusion in these terms:-

“I do not accept that submission.  In my view, the search of the accused’s luggage began when the dog commenced sniffing around it.  The dog was trained to detect the presence of cannabis.  In reality, it was being used as an aid in the search of the accused’s luggage and, for that matter, the luggage of the other passengers held in the cargo bin.  If the dog had not detected cannabis by smell in the accused’s luggage, the search of it would have gone no further.”

The search of the accused’s luggage, therefore, was unlawful.”

Although the transcript is not clear on the point it seems obvious that the learned trial judge was disposed to exclude the evidence of the facts above recited, in exercise of his discretion to do so, whereupon he was requested to state a case to this Court.  He declined to accede to that application.  The prosecution then sought and obtained an order of the Full Court directing him to reserve relevant questions of law for its consideration.

He accordingly complied with that direction and reserved the following questions for consideration and determination by this Court:-

(1)... Was the use of a sniffer dog unlawful, and if so what was the unlawfulness?

(2)... Was there any evidence that could support [his] finding that the search of the luggage of the accused for the purpose of section 68 of the Summary Offences Act, 1953 or section 52 of the Controlled Substances Act, 1984, began when the dog commenced sniffing around the luggage?

......... It seems to me that the correct responses to those questions are obvious; and that, with respect, the reasoning of the learned trial judge was erroneous.

......... I have already made the point that, when the accused surrendered his suitcase to the bus driver, who tagged it, placed it in the cargo bin and then secured the bin in a closed position, then, with the concurrence of the accused, it was being carried in an area controlled by the driver and not the accused.  In other words, with the implied consent of the accused, the driver was entitled to physical possession and control of the suitcase, in a space under his dominion, until such time as it was taken, by the driver, from the bin when reclaimed by the accused.

......... It was within the province of the driver, in his discretion, to grant the police access to the cargo bin as, indeed, he did.  Any subsequent “search” of that bin was clearly lawful, because it was conducted by the police with the concurrence of the person who was entitled to control over it.  It was whilst that lawful search was being carried out that the sniffer dog obviously detected the scent of the cannabis emanating from the accused’s suitcase.  It did so without the physical integrity of the suitcase being in any way compromised.

......... In essence the situation, apropos the accused, was, conceptually, no different than if he happened to be at the bus depot holding the suitcase and the police officer lawfully, but casually, walked past with a sniffer dog, who reacted positively when it came near the suitcase.

......... In both instances the reaction of the sniffer dog was plainly adequate to arouse in the mind of the police officer a reasonable apprehension that the accused was in possession of an illegal drug - so as to warrant an actual search of the suitcase itself.

......... There are two fundamental problems with the reasoning of the learned trial judge, and with the like contention which counsel for the accused sought to adopt before this Court.

......... The first is that it is incorrect to say that a mere sniffing of the scent emanating from the suitcase in the air in close proximity of the suitcase constituted a “search” of it.  According to its normal connotation the word “search” implies some physical intrusion into what is searched, for the purpose of examining what is in it.  That word is not apt to describe the mere act of detection of an odour generated by the content of the item searched, which is released into the atmosphere surrounding it without any positive acts of a third person to effect that release.  If it were otherwise ridiculous questions would arise as to how close one would need to get to an item generating an odour before one could be said to be searching it.

......... In this regard it seems to me that the Crown is on sound ground when it argues that a sensory perception of any type simply cannot constitute an act of searching, because it is a passive act which cannot possibly constitute a trespass.

......... As Sir Robert Megarry V-C said in Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620 at 640, the reason why a search which is not authorised by law is illegal is that it involves commission of the tort of trespass in relation to the land, goods or person searched. A mere act of enabling a dog to sniff the air in the vicinity of a suitcase involves no trespass to it, just as, to paraphrase the learned Vice-Chancellor, neither the eye nor the ear can be guilty of trespass.

......... The second is that, even if a sniffing in close proximity to the suitcase could properly be said to be an act of “searching” it, the short riposte is that it was patently open to the driver, as the person then in charge of the cargo bin, to permit the sniffing to take place as he, in fact, did.  There was no unlawfulness involved, even if his authority did not extend to actually opening the suitcase himself or permitting it to be opened.

......... It is true that some limited authority can be found in the United States which attaches a wide construction on what constitutes a search.  However, these are very much a reflection of specific concepts written into the constitution of that country by the so-called Fourth Amendment - which, inter alia, focus on reasonable expectations of privacy.  However, as is pointed out by the Crown, there is a wealth of published authority to the effect that the use of sniffer dogs does not, in situations such as that now under consideration, fall within the notion of a search.  (See, for example, United States v Beale 736 F.2d 1289 (1984), United States v Bronstein and Anor 521 F.2d 459 (1975), and United States v Place 462 US 696 (1982) at 706-707.)

I would respond to both questions reserved to this Court in the negative.

Prior J

I agree with Olsson J that each of the questions asked should be answered in the negative, for reasons that he has given. 

The bus driver had lawful authority to consent to the use of the sniffer dog in the luggage compartment of the bus.  It was unnecessary to obtain the consent of the passengers with luggage carried in the compartment as the use of the sniffer dog involved no trespass to luggage or freight in the compartment. 

I agree in particular with the submission put by the director that mere sensory perception, whether by eye, ear or nose, cannot of itself constitute a search.  It follows that odours which emit from a person's bag are exposed to the plain perception of the public at large.  Thus a dog who sniffing the area around a bag or parcel does not effect a search of that bag or parcel.  It could perhaps be described as an act of identification, but certainly not a search. 

Williams J

I would give the answer 'no' to each question.  There is no evidence of unlawfulness in the way in which the police gained access to the luggage compartment.  Sniffing around the luggage does not, relevantly constitute “search”.