The following is an opinion piece published on The ABC Drum online. It can be seen in its original context here.

Over the last decade police sniffer dogs have become a fixture on our streets as part of a “tough on crime” agenda by the State government.  They also operate on the rail network from Berowra to Bondi Junction, Cronulla to Katoomba.  For many young people sniffer dogs are a constant presence when they go out to popular nightspots on a Friday or Saturday night.  They are particularly well known to the State’s Aboriginal community. (continued below…)

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Figures secured by the Greens in Parliament show that last year more than 12,350 people were searched after a police sniffer dog indicated to its handler that the person had drugs on them.

At first glance this may appear a reasonable approach to policing. After all, dogs that have a good sense of smell may well be useful in crime fighting. At present a sniffer dog’s indication in relied on by police as forming a ‘reasonable basis’ for police to order a woman, for example, to leave a train at the next station on her way to work so police can conduct a public search of her on the platform.

But is there a solid basis on which to subject anyone to this? Does the indication of a sniffer dog to its handler actually form a reasonable basis to pull a person aside for an almost certainly humiliating public search?

We need to ask these questions because statistics recently produced by the NSW Police show that in 80 per cent of cases sniffer dogs do in fact indicate false positives.  That is, they sniffed, they stopped, they caused the police to search a person – only for no drugs to be found.

This is no little thing to be brushed aside.

A police sniffer dog’s false positive casts an immediate pall of suspicion over the target.  Once a dog has indicated the presence of drugs, police then assume the right to conduct an intrusive public search of the person, including patting down, emptying of pockets and quizzing the person about drug taking behaviour.

This happens on public streets, on train platforms and often at music events.  It is all done in the full and humiliating glare of public view.

In some instances police take the further step of insisting on a strip search, including cavity search – thankfully not on the platform.

Is it really ok to continue doing this knowing that 80 per cent of the time the suspicion and humiliation will be all as a result of a false positive by a dog?

Legally, police officers are only entitled to search a person for the presence of a prohibited drug if they suspect, on reasonable grounds, that the person is in possession of a prohibited drug. The High Court has found that when a statute provides for “reasonable grounds” to suspect something, that this requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

Police sniffer dogs have indicated false positives a staggering 11,248 times in just the nine months to 30 September 2011. That is an average of over 40 people per day wrongly accused as carrying drugs and subjected to consequential public finger pointing.

This process produces a great deal of unnecessary conflict with police.  Out of the 11,248 false positives in the nine months to September this year, more than 300 people were then either charged, or given a penalty notice or caution, for offences relating to their interaction with police officers during the search.

No one excuses poor behaviour towards police, but equally we should aim for laws and procedures that foster respect and harmony rather than conflict and pointless public shaming.

The simple fact is that sniffer dog operations are actively causing conflict with police through these ritual public humiliations caused by false positives.  They are also a serious intrusion on our rights as citizens not to be subject to arbitrary searches by the police as we go about our daily business.

If the searches were actually catching high level drug dealers then there might be an argument of balancing civil liberties against the need to crack down on organised crime.  However the truth is that serious drug dealers are more likely to deliver their drugs by Mercedes or Maserati than via a City Rail Tangara on a Friday night. Sniffer dogs just aren’t designed to sniff out the right traffic.

The 80 per cent failure rate by sniffer dogs throws very real doubts over the claim that an indication from a sniffer dog provides a reasonable basis for police to then conduct a public search. It is likely only a matter of time before a fresh legal challenge is made to the practice of police sniffer dog searches.  The courts will then have to decide if a test that is shown to be wrong 8 times out of 10 provides reasonable grounds for public humiliation.

Meanwhile the searches continue, relationships deteriorate and our civil liberties are taking a battering.

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