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January 26, 2022

Drug-dog warrants rely on suspicions

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Use of police drug sniffer dogs near high schools has become a controversial issue. Photo digitaldeconstruction.com
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Hans Lovejoy

The never-ending war against inanimate objects – in this case drugs – was highlighted recently with police dog operations targeting children as they entered both Murwillumbah and Mullumbimby high schools.

Subsequently, Echonetdaily sought to examine the warrants used and to raise awareness about your rights if a cute puppy attached to a policeman happens to sit down next to you.

Despite being denied access to view the school warrants, two other related warrants for Byron Bay and Murwillumbah streets and parks were made available to Echonetdaily.

It revealed that police were relying on previous drug detections and ‘suspicious activity’ for their application.

And it turns out the only drug that was detected in those operations appeared to be very small amounts of cannabis.

Dated July 30, 2014, both warrants viewed were submitted at the Murwillumbah Court House by Murwillumbah-based senior officer Jason McGinley.

The warrant application included an attached map of both Murwillumbah and Byron Bay, with requested search areas highlighted.

In the case of Murwillumbah, officer McGinley claimed that after information was obtained on the previous search operation, it resulted in ‘12 cannabis plants being seized during the operation within the CBD. No illegal drugs were located but numerous detections were indicated.’

This last sentence is interesting; despite detections being ‘indicated’, ‘no illegal drugs were located.’ It reinforces the finding of the NSW Ombudsman that such use of police resources is of questionable value.

Byron Bay’s warrant was slightly different, with the last operation resulting in ‘19 drug detections (cannabis)’ which resulted in cautions.

McGinley wrote, ‘Byron Bay has a high transitory population… [there is a] large volume of persons in possession and partaking in the consumption and supply of illegal drugs. Recent information received is that it is continuing… in the presence of holiday makers and families.’

Oversight

So what oversight is there of police undertaking these types of operations?

While budgets and results are difficult to extract from police and politicians, a spokesperson for the NSW Department of Justice (DoJ) told Echonetdaily that officers lodging warrants are required to do so under oath and there are penalties for giving false information.

Under Search Warrants Act 1985, providing false or misleading material ‘in or in connection with an application for a warrant’ can attract a maximum penalty of ‘100 penalty units or imprisonment for two years, or both.’

Additionally, the determination of whether to seal the warrant is the decision of the local courthouse clerk where the warrant is lodged, the DoJ spokesperson said.

But what about your rights if stopped and searched by police in public if you have not been arrested?

Kirsten Cameron from Legal Aid NSW pointed to a 2001 NSW court of criminal appeal ruling for R v Rondo which highlights ‘reasonable suspicion’. She told Echonetdaily that, ‘Despite considering a repealed section, (this case) still has weight in determining whether a search is lawful.’

From paragraph 53 it reads, ‘Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value.’

But conventional wisdom of course is to always be polite and offer your name and address if asked. And if arrested, there is a right to silence.

It’s your right to seek legal advice before talking as well.

If being stopped and searched, you are also permitted to ask the officer’s name and which station they are from.

The website for Legal Aid NSW advises that police have the power to search you – and your car, boat or other vehicle and possessions – if they have ‘reasonable grounds’ to suspect that you are carrying stolen goods or goods unlawfully obtained, prohibited drugs, an item that has been, or may be, used in a serious crime, for example tools to break into a car or house; knives, weapons or ‘dangerous implements’ and laser pointers.

‘Police can pat you down, ask you to remove your outer clothing and shoes, look into your clothing and belongings and use an electronic metal detection device. They can also ask you to shake your hair and open your mouth.

‘Police can only perform a strip search if they have reasonable grounds to suspect that it is necessary and the circumstances are serious and urgent. They must provide you with as much privacy as possible.

‘As far as is practicable, the search must be carried out by a police officer of the same gender as the person being searched. In the case of a strip search it should be, as far as practicable, in a private area, out of sight of people of the opposite gender to you, out of sight of other people not involved in the search.

‘A strip search must not involve a search of a person’s body cavities or an examination of the body by touch.’

And remember, if you believe an officer has misused their powers, including being unreasonably intimidating, you can make a complaint.

This can be done by contacting the Ombudsman’s office (toll free) 1800 451 524.

More can be found at www.legalaid.nsw.gov.au.


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