R. v. A.M.: Is a Dog Sniff a ‘Search’?

Within a week’s time, the Supreme Court of Canada (“SCC”) is scheduled to hear a case of considerable importance to the future interpretation of section 8 of the Canadian Charter of Rights and Freedoms. In its consideration of what precisely constitutes a ‘search’ under the Charter, R. v. A.M., 2008 SCC 19 [A.M.], will offer a needed clarification of the SCC’s previous and controversial decision in R. v. Tessling, 2004 SCC 67 [Tessling].

In R. v. Tessling the SCC ruled that the R.C.M.P.’s use of an airplane-mounted Forward Looking Infra-Red (“FLIR”) camera to detect heat emanations from the house of a suspected marijuana cultivator did not infringe on the individual’s reasonable expectation of privacy. At the time of use, the police had not obtained a search warrant, nor had they any substantial evidence outside the statements of untested informants. In conjunction with such statements, however, the FLIR images permitted the police to finally obtain a warrant to search the suspect’s home, where a large quantity of marijuana and several weapons were discovered.

The accused was charged with a number of offences to which he responded that the FLIR overflight was a violation of his section 8 rights, and that the police ought not to have been granted a search warrant that was partially based on such a violation. Without a valid search warrant, the accused argued, any evidence obtained by police during the search must be excluded under s. 24(2) of the Charter.

In its decision, the SCC stated that while s. 8 of the Charter ensures that “everyone has the right to be secure against unreasonable search or seizure,” not every form of examination by the State will constitute a ‘search’ for constitutional purposes. Rather, it is only in situations in which the government’s examination constitutes an intrusion upon an individual’s reasonable privacy interests that a search under section 8 is said to have occurred. After thorough consideration, the SCC ruled that measuring heat distribution across the external surfaces of a house is both non-intrusive and incapable of providing police with the type of personal information in which an individual might claim a reasonable expectation of privacy.

Tessling has proven rather controversial. By focusing somewhat narrowly and abstractly on the police measuring “waste heat”, the Court did much to decontextualize the encounter. The police training high-tech heat sensing devices at our homes to ascertain an important detail about activities taking place inside was recast in relatively benign terms. Rather than encroaching on privacy by collecting information about heat generating activities taking place inside, the police were termed to be engaging in the relatively unintrusive practice of detecting waste heat that escapes to the external surfaces of the home.

In R. v. A.M. the SCC will need to determine whether, in light of Tessling, the police use of a dog to sniff the belongings of people in public places constitutes a search under s. 8 of the Charter. In this case, police acted upon a long-standing invitation from a Sarnia high school principal to bring dogs into the school to search for drugs. Although the principal had no particular suspicions on the date in question, he had previously expressed concern about the presence of drugs and had received occasional reports from neighbours and parents concerning drug use within the school. Notwithstanding the principal’s general invitation, the police’s attendance on the particular day was neither requested by school authorities, nor had school officials been consulted prior to the officers’ arrival.

Upon instructing students to remain in their classrooms, the principal gave the officers permission to search the school and specifically directed them towards the gymnasium. While in the gymnasium, the sniffer dog reacted to A.M.’s unattended backpack. Without obtaining a warrant, the police opened the bag to discover amounts of marijuana and psilocybin. A.M. was charged with possession for the purpose of trafficking.

At trial, A.M. challenged the admissibility of the evidence, arguing that the police’s warrantless, random search of the school had been unreasonable and had thus violated section 8 of the Charter. While the Crown conceded that opening A.M.’s backpack constituted a search, they argued that the actions of the sniffer dog and handler upon school grounds could not amount to a search under s. 8.

Relying heavily upon the principles set out in the SCC’s decision in R. v. M. (M.R.), [1998] 3 SCR 393, the trial judge concluded that there had, in fact, been two searches, neither of which was conducted on reasonable grounds. Accordingly, the judge excluded the evidence obtained through the search under s. 24(2) of the Charter.

At the Ontario Court of Appeal, the Crown turned to the SCC’s ruling in Tessling, released following A.M.’s trial. The Crown argued that before opening A.M.’s backpack, the police had not been engaged in a search for s. 8 purposes. In particular, the Crown submitted that the dog sniff merely provided information regarding the absence or presence of a scent and that there is no reasonable expectation of privacy concerning odour emanating from drugs in a backpack.

The Appeal Court was ultimately not persuaded that the SCC’s judgment in Tessling offered appropriate support for the police’s conduct in A.M. Rather, speaking for a unanimous court, R.P. Armstrong J.A. was abundantly clear at para. 47 that the two cases must be distinguished:

“I see a significant difference between a plane flying over the exterior of a building (on the basis of information received) and the taking of pictures of heat patterns emanating from the building, and a trained police dog sniffing at the personal effects of an entire student body in a random police search.”

Armstrong, J.A. further noted that in R. v. Evans, [1996] 1 SCR 8 [Evans],  the SCC had held that police officers sniffing at the door of a house in order to detect the odour of marijuana were involved in an “olfactory search” which engaged s. 8 of the Charter.

As we wait for R. v. A.M. to be heard by the SCC, it is worth noting that in United States v. Place, 462 US 696 (1983) the United States Supreme Court (“USSC”) held that a dog sniff does not constitute a ‘search’ under the Fourth Amendment to the Bill of Rights. Moreover, the USSC’s decision in that case happens to share the same reasoning deployed by the Crown in their presentation of A.M. at the Ontario Court of Appeal.

It will be interesting to see how the Supreme Court resolves the apparent conflict between its approach to defining reasonable privacy expectations from Evans to Tessling. Will police dogs sniffing our persons, bags, luggage, and cars at the direction of their police handlers be characterized as an unintrusive detection of waste odours that does not engage the protection of section 8? Or, alternatively, will this sort of police – citizen encounter be termed a “search” that is subject to Charter standards?
R. v. A.M. will be heard by the SCC on May 22, 2007.