10 May 2012


Use by Australian law enforcement bodies of sniffer dogs at rave parties and other events remains controversial, with questions about privacy and about the accuracy of results.

The NSW Ombudsman for example in a 2006 report regarding the Review of the Police Powers (Drug Detection Dogs) Act 2001 criticised NSW Police use of dogs as inefficient, discriminatory and ineffective.
Our review found that despite the best efforts of police officers, the use of drug detection dogs has proven to be an ineffective tool for detecting drug dealers. Overwhelmingly, the use of drug detection dogs has led to public searches of individuals in which no drugs were found, or to the detection of (mostly young) adults in possession of very small amounts of cannabis for personal use.These findings have led us to question whether the Drug Dogs Act will ever provide a fair, efficacious and cost effective tool to target drug supply. Given this, we have recommended that the starting point, when considering this report, is to review whether the Drug Dogs Act should be retained at all.
'How the War on Drugs Distorts Privacy Law' by Jane Bambauer in Stanford Law Review (2012) comments that -
The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. The case, Florida v. Jardines, has privacy scholars abuzz because it presents two possible shifts in Fourth Amendment jurisprudence. First, the Court might expand the physical spaces rationale from Justice Scalia’s majority opinion in United States v. Jones. A favorable outcome for Mr. Jardines could reinforce that the home is a formidable privacy fortress, protecting all information from government detection unless that information is visible to the human eye.

Alternatively, and more sensibly, the Court may choose to revisit its previous dog sniff cases, United States v. Place and Illinois v. Caballes. This precedent has shielded dog sniffs from constitutional scrutiny by finding that sniffs of luggage and a car, respectively, did not constitute searches. Their logic is straightforward: since a sniff “discloses only the presence or absence of narcotics, a contraband item,” a search incident to a dog’s alert cannot offend reasonable expectations of privacy. Of course, the logical flaw is equally obvious: police dogs often alert when drugs are not present, resulting in unnecessary suspicionless searches.[Bambauer notes that Justice Souter in dissent criticized his colleagues for building a dangerous myth of the infallible police dog.]

Curiously missing from any Supreme Court opinion is a reflection on how contraband-detecting dogs fundamentally change law enforcement. Police dogs are old technology, but their widespread use ushers in a new model of policing. Like pattern-based data mining, dog sniffs produce tradeoffs inherent in dragnet-style law enforcement. They redistribute the burden of unproductive searches from the few-but-stereotypically “suspicious” to the entire population.

This Essay presents new qualitative research based on the facts of Florida v. Jardines. The results suggest that Americans are more resistant to new police tools and new models of investigation when we are skeptical about the underlying substantive criminal laws. Intuitive reactions to the “war on drugs” put scholars and courts at risk of overlooking the value of new investigatory tools. Emerging technologies can simultaneously improve crime detection and reduce law enforcement discretion (and, hence, potential abuse). If used properly, these tools can lead to more equitable enforcement of criminal laws without significantly burdening privacy.

The Essay concludes by proposing how Fourth Amendment analysis can be reconfigured to accommodate both the old model of individualized suspicion and new suspicionless models designed to decrease discretion. It argues that courts should require three elements before determining that use of a new tool does not constitute a search: (a) low error—the screen significantly outperforms the accuracy rates of traditional probable cause warrants; (b) uniform application—all citizens are equally likely to be screened; and (c) negligible interference—the tool itself should not cause adverse effects. The drug sniff in Jardines fails on all three of these factors and would not be allowed under this rubric, but future law enforcement technologies might not.