NSW Ombudsman slams police drug sniffer dogs

Police drug sniffer dogs and lies

Police drug sniffer dogs operate to catch commercially motivated suppliers of drugs. They cut drug use, promote drug harm minimisation, and there are safeguards in the legislation to protect the unnecessary collection of personal data of those that are innocent. It is cost-effective, and it makes the public feel safer. Where a false sniffs occur, it’s because people have been in the immediate vicinity of people who have been smoking cannabis. Lies, lies, lies – all lies.

The long awaited NSW Ombudsman’s Review of the Police Powers (Drug Detection Dogs) Act 2001 [1] was made public on September 14.

The aim of the legislation was to crack down on the suppliers of illegal drugs.[2] However, the Report concludes that the drug dog regime has failed.

The use of drug dogs on the streets of NSW led to “unprecedented community interest”[3] and has been taken up by the Greens and the NSW Council for Civil Liberties as key civil rights issue. During the campaign against the use of sniffer dogs, the Council and Redfern Legal Centre received significant media attention when they set up a free mobile telephone text-messaging service designed to alert subscribers to the presence of sniffer dogs.

Although one of the stated reasons for the legislation was catching drug dealers, the Report says that “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.”

The legal powers

Once completed, the Report was not released for two years, with a Greens-sponsored resolution of the NSW upper house forcing its disclosure.

The Act gives powers to the police to use drug detection dogs in public places.  This can happen without a warrant at pubs and clubs, specified public transport routes (especially trains) and at sporting and other venues.  Elsewhere, the drug dogs can be used with a warrant.

Many people’s awareness of the drug dogs occurs when walking down streets or malls in suburbs such as Newtown or Darlinghurst.  Streets and malls accounted for 12% of searches, public transport 63% and dance parties 2%. [4] The dogs can be seen sniffing people at random and the dog will indicate to its handler when it gets a positive sniff.  This leads to a search of the person’s belongings and person, often in view of passing members of the public.

How many people have been sniffed?

There are no reliable numbers for the number of people who have been publicly sniffed by a drug dog.  In this author’s experience, the dogs move quickly from person to person, so that many people can be sniffed in a few seconds. 

How many have been sniffed positive?

Dogs have indicated a presence of illegal drugs on 10,211 occasions over the two years covered by the Report. 

Who gets a positive sniff?

The typical profile of a person who gets a positive sniff is a young man who has had no prior contact with the police.  Nearly half (47%) of people who were positively sniffed were under 26.

And what was found?

The report says that “No drugs were located in almost three-quarters of searches” following a positive sniff.  In other words, the dogs have an accuracy rate of about 25-30%.

25-30%?

Yes.   The Ombudsman figure conflicts with the figure given by the police.  This is because the police say that the dogs are 70% accurate, however, the Report urges caution when it comes to relying on the police figures.

The 70% figure takes into account incidents in which no drugs were located but where the person made some admission of prior drug contact.  However, this prior contact sometimes involved admissions of prior drug contact that “were so remote in time they did not provide plausible explanations for the indication.”  For example, “a number of admissions recorded by police in information reports involved drug use dating back days, weeks, months, and in some cases, years.”

On those minority of cases where drugs are found

“Police generally located only very small amounts of cannabis….” says the report.

And then “almost two-thirds (1466 of 2233) of all incidents where cannabis was located resulted in police issuing a cannabis caution.”

Reasonable suspicion?

An interesting legal point raised by the Report is that the legislation does not give the police any extra search powers.  They still need a “reasonable suspicion” that a person has illegal drugs on them.  The police argue that a positive drug sniff is enough to give rise to that reasonable suspicion.

However, when the drug dogs get it wrong most of the time, can they be relied on to form a reasonable suspicion?

The Ombudsman’s office thinks not.  “Given the low rate of detecting drug offences following a drug detection dog indication, it is our view, supported by Senior Counsel’s advice that it is not sufficient for a police officer to form a reasonable suspicion that a person is in possession or control of a prohibited drug solely on this basis.”  Perhaps someone needs to challenge this legally in the courts?

Perhaps the person has been in the presence of cannabis smoke?

Evidence has been received by the Ombudsman office that when individuals are positively sniffed and, upon search, are found not to have any illegal drugs on them, are told that they must have been in the presence of cannabis smoke.

This explanation, however, seems to be rank and file police folklore with no factual basis.  Drug detection dogs “are not trained to detect cannabis smoke and there is no scientific evidence to suggest that the dogs would indicate a person who has been in the presence of other people smoking cannabis. However, we have observed dog handlers and police officers regularly tell people that cannabis smoke was the likely cause of the indication.”

How effective are the dogs at catching suppliers?

“A key measure of the effectiveness of drug detection dogs is their ability to contribute to the primary objective of the Drug Dogs Act, which is the identification and prosecution of persons involved in the supply of prohibited drugs.”

However, for the two-year review period, only 1.38% of all indications led to a dog finding a ‘deemed supply’ quantity of a drug.   And of these 1.38%, the offenders “were mostly young, male, first-time offenders involved in the supply of relatively small quantities of drugs to friends and partners for a specific event (such as a dance party).”

It should not be surprising that during the two year period of review not one person was convicted of supplying illegal drugs in order to make a profit.  As Cameron Murphy, President of the NSW Council for Civil Liberties said when the laws were first introduced,  “What they're doing clearly is targeting people at the bottom end of the drug pyramid, people who are users.    It means someone carrying a small amount of cannabis on a suburban train will be picked up, while the dealer driving around the North Shore in his BMW is not going to be affected at all."
      
 

Successful prosecutions?

“The successful prosecutions for supply represent 0.19% of all drug detection dog indications for the review period.”   That’s 1 in every 526 positive sniffs.

In other words, “more than 99% of persons indicated by drug detection dogs either had no drugs, or did not possess the drugs for the purpose of supply. On this measure it is clear that drug detection dogs are not an effective tool for detecting persons involved in the supply of prohibited drugs, which is the primary objective of the Drug Dogs Act.”

Deterrence

“We were not able to identify any evidence that the use of drug detection dogs has had a deterrent effect on drug users, or led to a reduction in drug-related crime. Nor were we able to measure any appreciable increase in perceptions of public safety as a result of high visibility policing operations utilising drug detection dogs.”

Cost-effective?

An indication of the cost of drug dog operations was Sydney’s Big Day Out on 23-24 January 2004, which was described by police as having “excellent results.”  

The cost of the dogs, with handlers, deployed from 8.30am to 3.00pm on both days across the concert venue and the City Rail network was $41,000.  Of those sniffed, searched and arrested, no one was charged for the commercially motivated supply of illegal drugs.  5 were successfully prosecuted for supply to friends and partners, all receiving suspended sentences or good behaviour bonds.  81 were charged with possession and a further 139 people were issued with cannabis cautions after being detected with small amounts of cannabis.

Intelligence gathering

Another concern raised by the Report was the practice of the police collecting the names and addresses of those who received a positive sniff, even where durgs were not subsequently found.

Under the legislation, police do not have the power to compel someone to give their name or address when the dog has sniffed and made a mistake.   Nor do the police have the power to detain a person after a mistaken sniff to conduct radio checks. 

However, young people when asked by a police officer are likely to comply out of fear.   “When police requested details they generally did not offer information to the person searched about how their personal details or other information would be used [namely, put on the police computer system].  Nor did police inform the person that they did not have to provide these details.”

Harm maximisation

The Report also indicates that the drug dogs may even be exacerbating the harmful effects of drug use.

“We received various reports suggesting that drug users were engaging in risky drug taking strategies in an attempt to avoid detection.  Such strategies included: the consumption of larger amounts of drugs at once instead of taking smaller amounts over a period of time; consuming drugs at home and then driving to entertainment venues; purchasing drugs from unknown sources at venues to avoid carrying drugs; and switching to potentially more harmful drugs such as GHB [Gamma Hydroxy Butyrate] in the belief that these drugs are less likely to be detected by drug detection dogs.”

Especially worrying, in my opinion, was when the Ombudsman “received reports that the use of drug detection dogs in the vicinity of health services such as needle and syringe exchange programs, methadone clinics, and the Medically Supervised Injecting Centre, deterred people from using these health services and may have resulted in some drug users engaging in risky drug taking practices such as needle sharing.  It was also suggested that, as a result of drug detection dog operations, some drug users were less likely to return used injecting equipment, undermining strategies to encourage the safe disposal of needles and syringes.”

Conclusion

In conclusion, the Report says, among other things, that “Overwhelmingly, the use of drug detection dogs led to searches where no drugs were found, or to the identification of mostly young adults in possession of very small amounts of cannabis for personal use.”

“There is little or no evidence to support claims that drug detection dog operations deter drug use, reduce drug-related crime, or increase perceptions of public safety. Further, criticisms of the cost-effectiveness of general drug detection operations appear to be well founded.”

Ultimately, “we have misgivings about whether the Drugs Dogs Act will ever equip police with a fair, efficacious and cost-effective law enforcement tool to target drug supply. In light of this, we have recommended that the starting point when considering our report is a review of whether the legislation in its present form, or amended as suggested, should be retained at all.”

An article in the 14 September 2006 Australian reported the publication of the Ombudsman’s Report, including the figure that only 19 out of more than 10,000 people searched for drugs were prosecuted for drug supply between 2002 and 2004.

The article quoted Acting Police Minister David Campbell as saying that “I think 19 people prosecuted successfully for the use [sic] or supply of drugs, that are illicit drugs, is an entirely satisfactory outcome.”

[Dale Mills written 20 September 2006]