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The Partial Sit

February 21, 2019

The news media and local commentariat are exercised over a recent court decision in which a judge apparently split a hair so fine that the division would be invisible under a microscope. Here are the details.

The police pulled over a minivan for speeding, but when the officer became suspicious, he called upon his service dog, Doods, to sniff out possible drugs. When Doods indicated there were drugs, the officer placed the driver under arrest and had the van towed to a nearby garage where they found 27,500 fentanyl tablets. At trial, the officer testified that Doods had executed a "partial sit." (When a sniffer dog detects contraband, the dog sits.) Doods started to sit, but apparently bumped her bum against a curb and stood up. To the officer, this partial sit was enough to justify the arrest and the search of the van. To the judge, it wasn't. The evidence—the fentanyl—was thrown out as was the case, and the suspect was released.

And the public went into full indignation mode. Given the enormity of the drug problem, over four deaths per day in BC alone in 2018, the judge's decision was at best baffling, at worst, demented.

Except the judge was right.

There are two issues here. The first is the authority of the police who are armed with legal powers and guns. Here, those powers are constrained by law. The police cannot arbitrarily pull you over or stop you on the sidewalk or force their way into your home unless they have good reasons for doing so. (We hope the Supreme Court demolishes the new regrettable roadside legislation.) The countries in which those constraints do not exist are called police states.

The second issue is what constitutes a good reason to detain and search someone. This is a thorny problem that the courts deal with every day, but there are some examples where the criteria are clear. One is sniffer dogs. If the dog sits, that is a sign of contraband and legally justifies a search. If the dog doesn't sit, it isn't. Doods didn't sit. Did she intend to? Did the curb startle her bum? Did she need to pee? We can't ask her, but we don't have to. The officer testified that had Doods not signaled contraband, he wouldn't have had sufficient reason to detain the driver. Well, Doods did not sit. Could the officer have tried again? Asked the driver to pull away from the curb? Try the other side of the vehicle? Maybe, but he didn't. He decided that Doods' partial sit was an unambiguous signal when, according to police procedures, it wasn't.

The outcome of the case is infuriating, but to those who are fulminating against the judge, I have one question: would you tolerate the police being able to detain and search you on a whim? I wouldn't.