Ombudsman slams use of police drug dogs
by Dale Mills
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 a 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
The Ombudsman's report was tabled more than two and a half
years after the review period ended, following a Greens-sponsored
resolution
of the NSW upper house put pressure on for 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 drugs 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.”
Date: 20 September 2006
footnotes
1. The Act has been repealed and its provisions placed in
the Law Enforcement (Powers and Responsibility) Act 2002.
2. Mr Michael Costa, the then Police Minister, said in his
Second Reading speech to the NSW Legislative Council of the
NSW Parliament on 6 December 2001 that “The
Bill is aimed primarily at detecting and prosecuting persons committing offences
relating to the supply of prohibited drugs or plants.” [emphasis added].
This was emphasised in subsequent media reports: ABC News Online 7 May 2002 quoted
Costa as saying "…if you get on a train to conduct a drug deal you
have to be mindful that there could be a drug detection dog on that particular
line and you face the potential of being arrested." [emphasis added]
3. all subsequent quotes are from the Ombudsman’s Report.
4. for ease of reading, percentages have been rounded to the nearest 1 per cent.
Further Reading
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