SNIFFER DOG OVERSTEPPED MARK IN DRUG SEARCH, APPEAL JUDGE TOLD

A magistrate was entitled to dismiss two drug charges against a man who had
been "nuzzled, punted or ferreted" by a police sniffer dog as he tried to
walk away, counsel told the Supreme Court yesterday.

Clive Steirn, SC, was appearing for Glen Darby in an appeal by the Director
of Public Prosecutions against the decision by the deputy chief magistrate,
Mary Jerram.

Ms Jerram had ruled that the dog intruded on individual rights when it
allegedly sniffed out the drugs in Mr Darby's pocket outside an Oxford
Street nightclub on February 25, 2001, and then followed him, putting its
nose on his pocket.

The actions of the dog had constituted a search at a point where the police
had not formed a "reasonable suspicion", which was needed in law to justify
a search.

Mr Steirn said that the action of the black labrador, Rocky, constituted
"trespass".

"Contemporary standards of society as we would understand them do not allow
for a dog under control of a human being to touch people on the body
anywhere," he said.

"No police officer would be allowed to press with his nose or touch a person.

"If the dog detects cannabis in the brassiere of a woman then it is
conceivable that a dog can jump up and nose the breasts. It would be
repugnant if the dog was to nose between the dress and the panties.

"If the dog in its job picked up the scent in the urine and the police then
searched, the police would quite obviously take the view that the dog
needed to go back for retraining."

Richard Cogswell, SC, for the DPP, said there was no evidence of
"forcefulness" by Rocky, only that the dog had pressed its nose against Mr
Darby "more than once".

He said: "The question is whether the degree of touching was such as to
amount to assault or trespass. We say it did not."

Rocky had been trained to put his nose against the pocket and then sit
down, ready for a reward. He had only persisted because Mr Darby had walked
away.

A police officer was entitled to tap a person on the shoulder and ask what
a particular bulge in his pocket was. That was not assault or battery.

"What we are saying, Your Honour, is that all the dog has done is to have
touched the man," he said.

Because the dog had been trained to sniff out cannabis leaf, the police
accompanying the dog had formed the reasonable suspicion that drugs were
present.

A subsequent search of Mr Darby had found a quantity of cannabis and methyl
amphetamine, he said.

Justice Barry O'Keefe reserved his decision.