Van Houten v The King [2023] SASCA 57 (1 June 2023)
For a number of years, 'Schoolies' festivities have occurred on an annual basis in Victor Harbor during which the population of Victor Harbor swells by anywhere between 5,000 and 10,000 young people.
The police take measures to prevent and detect the trafficking in controlled drugs at Schoolies and for that purpose, have powers under the Controlled Substances Act to carry out general drug detection duties in an area suspected of being a drug transit route. those powers enable the police to stop a vehicle at random to enable a drug detection dog to check drivers and vehicles for the presence of controlled drugs. However, the power does not include a power to actually conduct a random search.
The power search is enlivened only if a trained drug detection dog indicates the presence of a controlled drug on persons in the vehicle or in the vehicle itself. For that purpose, the police can give directions which will enable the drug detection dog to carry out its function, such as directing a driver or passenger to get out of a vehicle and stand on the road.
In this case, the police had identified a suspected drug transit route through a designated area on the outskirts of Victor Harbor on the day before the Schoolies festivities commenced. Mr Van Houten (the appellant) was directed to stop his vehicle. Police dog Taco was at the scene with his police handler. Taco was a drug detection dog trained to detect odours given off by drugs. When a drug detection dog identifies a drug odour it is trained to work towards its strongest source, and then sit down at that source. The dog is then rewarded with a treat such as a biscuit.
Police dog Taco was led to where the appellant was standing close to his vehicle and indicated the presence of a drug odour by sitting down. Taco's handler then led him to the appellant's vehicle and opened several of its doors to permit Taco to partially enter it. The dog again sat down.
The vehicle was then entered by police who discovered methylamphetamine and fantasy. The appellant was subsequently convicted of two counts of trafficking in a controlled drug. He appealed against his conviction to the Court of Appeal.
On appeal, the appellant argued that when Taco was permitted to actually enter the appellant's vehicle, that amounted to a 'search' and a search was not permitted during the course of general drug detection duties until such time as the police had a reasonable suspicion as to the presence of a controlled drug.
The appellant argued that the fact of police dog Taco sitting next to the appellant was not sufficient to ground the reasonable suspicion necessary before the police could lawfully conduct a search. That argument was based on the 'strike rate' of a positive indication from a drug detection dog being less than 50%. However, a contrary argument was that a drug detection dog may detect a drug odour on persons who had recent contact with drugs, although they might not be in actual possession of them at the time of their contact with the dog.
The court found that the entry into the vehicle by Taco at the direction of his handler was indeed a 'search' but a search was justified because Taco's behaviour was sufficient to found a reasonable suspicion as to the presence of a drug in the appellant's vehicle.
The court dismissed the appeal.