DOG’S ‘SIT’ GOT DRUG CASE TOSSED.
POLICE CANINE’S HALF-SIT NOT ENOUGH FOR DRUG SEARCH
The question for the judge in the end was simple — did Doods, a German shepherd police dog, sit or not?
If she did, then police had grounds for searching a minivan for drugs — in which they found 27,500 pills of deadly fentanyl. But if Doods didn’t sit, then the stop and search could be considered illegal.
Unfortunately for the police, Doods was seen only to give a “partial” sit which the judge ruled was “highly ambiguous,” and certainly not a clear signal that drugs were present in the minivan.
In the end, B.C. Supreme Court Justice Michael Brundrett found in a pre-trial ruling that the search was illegal and the five 17.5-lb. bags of pills were therefore excluded from the evidence. The driver, Sandor Rigo, was acquitted.
The road to trial started from a traffic stop in April 2017. Cpl. Clayton Catellier was doing traffic patrol on Highway 1 near Chilliwack, B.C. when a brown Ford Windstar minivan ripped up behind him, some 15 kilometres per hour over the speed limit. Catellier pulled the van over.
The vehicle reeked of cologne or air freshener and Rigo was “shaking violently” at the wheel. There were multiple cellphones in the vehicle, including Black-Berrys — suspicious, because their encryption capabilities made them popular with drug dealers, the officer figured.
Combine that with Rigo’s story about driving from Calgary to Vancouver and back to buy used tires — “one of the most illogical travel stories that (Catellier) had heard in the hundreds of traffic stops that he has conducted,” wrote the judge — and that the stretch of Highway 1 between Chilliwack and Hope is a known drug corridor, and it was enough for Catellier to bring over his search dog.
Enter Doods, who, according to the ruling, had found drugs 30 to 50 times, and in training sessions, had only had a false positive — finding drugs where there were none — just one time.
Upon sniffing the car — her tail wagging and nose bouncing off the van — Doods began to signal there were drugs, Catellier said. She went “paws up,” putting her hands up on the side of the vehicle. And then, said Catellier, she tried to sit down, signalling there were drugs.
That’s when something went awry.
“This time, she went to go sit and appeared to be startled by her rear-end hitting the concrete barrier on the passenger side of the van,” said the ruling.
Still, Catellier figured the partial sit was enough: he arrested Rigo on the basis of Doods saying there were drugs present, and a quantity of cash he’d found in Rigo’s wallet during a frisk.
“The dog and the signal that the dog gives, we’re relying on that to give the police officers what they don’t have, and that is grounds to make an arrest, detain the person, start the criminal process,” said Ottawa defence lawyer Michael Spratt. “Those are pretty extreme powers.”
A search of the vehicle on the side of the highway turned up no drugs. The police had the van towed into town where a mechanic removed the tires, so they could be searched.
No drugs were found. Then Catellier noticed a tube of Bondo, an auto-body filler, in the rear console that he hadn’t noticed before and searched again. Inside the interior housing of the right wheel well, he found five plastic bags filled with fentanyl pills.
Rigo was charged with possession for the purpose of trafficking.
But had Doods really alerted Catellier that there were drugs? And if she hadn’t, was the search of the van legal?
An American expert witness, Andre Falco Jimenez, a former Anaheim County police officer, testified for the defence. After looking at police dash cam video, he said he didn’t believe the dog was giving any sign there were drugs.
“He described the dog as very lackadaisical ... He said that dogs that make a find are typically happy, engaged, excited, and more alert because they expect to be able to play with a toy,” said the ruling.
But the judge did find, based on dash cam video and Catellier’s overall credibility, that Doods did partly sit. The key moment is obstructed in the dash cam video.
However, given that the officer had never seen a partial sit before, the judge said it could not be reasonably concluded that it was, in fact, a sign that there were drugs in the car — the sit was “highly ambiguous.”
The judge concluded that even with the subtle signs Doods was showing, such as flaring her nostrils, and the other concerns Catellier had — the aromatic minivan interior and wad of cash — the partial sit was the clinching factor in the arrest.
Since that wasn’t legitimate, the arrest violated Rigo’s Charter rights and he was acquitted.
Court challenges to a sniffer dog’s behaviour aren’t particularly common, said Spratt, and the ruling says counsel were not able to provide any other Canadian cases where a dog had given an ambiguous alert.
“When you’re looking at what the dog actually does, you’re starting from a point when you don’t have grounds to make an arrest or to engage in a search, so the dog has to get you over that hump of reasonable grounds,” said Spratt. “If the dog is equivocal in their behaviour, then it’s, I think, a legitimate argument to say it doesn’t give you that extra evidence you need.”
DOGS THAT MAKE A FIND ARE TYPICALLY HAPPY, ENGAGED.