Sniffing and Snarling: K-9s and the Law

Simcha Walfish
recent graduate, McGill University, Faculty of Law

30 October 2020

In her paper on the growth of olfactory surveillance, Amber Marks writes about the ways in which the sniffer dog is a “technology.” Marks builds on the work of Gary T. Marx on “new surveillance” where technology is used to “extend the senses.” Marks writes that “it is the technical means by which this information is obtained that makes the surveillance intrusive because it permits information reasonably expected or assumed to be confidential to be obtained.” In extending the senses, technologies like the sniffer dog “challenge fundamental assumptions about personal and social borders.’” Tracing the ways in which courts and legislatures have come to see the sniffer dog as “an extension of the police officer,” Marks seeks to highlight the problematic way in which this assimilation has deflected serious regulatory scrutiny.

Not all aspects of the use of the police dog fit neatly into the framework of new surveillance, though. For example, Marx writes that “The new surveillance relative to traditional surveillance extends the senses and has low visibility or is invisible.” The police dog is far from invisible. As Tyler Wall argues, this is the point. Against the view of the police dog as a technology used for its sense of smell, Wall opposes the image of the snarling police dog. For Wall, the police dog has less to do with smell and more to do with terror.

In this probe, I will briefly sketch these contrasting images of the police dog to see what, together, they can tell us about what kind of technology the police have created out of the dog.

Smelling disorder

In his essay, “The Smell of Power,” Mark Neocleous asks “what is the political meaning of a sniffer dog?” For Neocleous,

its meaning lies less in its ability to generate fear and more in its ability to enact a politics of smell; the use of the Chihuahua as a sniffer dog in Japan and the attempt to replace the sniffer dog with sniffer technologies are evidence of the fact that it is the power to smell rather than the power to scare that is important. Investigating this power situates the sniffer dog at the heart of police power.

For Neocleous, “the dog is, in effect, a technology of state power.” If “we grasp that policing is about the fabrication of social order rather than ‘law enforcement,’” we can grasp the key role played by the sniffer dog at the heart of police power.

Neocleous traces the contemporary wars on drugs and crime to the invention of modern police power in the Vagrancy Acts that were passed pretty much throughout the Western world in the 19th Century. These laws were characterized by their vagueness and broad scope, giving agents of the state an “all-encompassing discretionary power.” For example, the Vagrancy Act 1824, provided for “the Punishment of idle and disorderly Persons, and Rogues and Vagabonds.” When the British police were created in 1829, their core powers were already present in the Vagrancy Act. These powers were “consolidated with the Metropolitan Police Act 1839, which allowed the police to stop and search ‘any Person who may be reasonably suspected of having or conveying in any Manner anything stolen or unlawfully obtained.’”

Neocleous writes that

The ambiguity built into the laws and the breadth of powers they offered means that they were ‘sweep laws’: they allowed individuals to be stopped on the grounds merely of suspicion, and even perhaps on the grounds of suspected criminal intent. Hence a huge range of acts or non-acts, forms of behaviour and inactivity, fell foul of the laws, such that a ‘sweep’ of any area would easily find guilty parties. In granting sweeping powers to target anything considered ‘disorderly’ or ‘suspicious’, the determining principle underpinning the vagrancy laws was not the liberty of the subject but the well-ordered society.

Today, instead of the crime of vagrancy, we have crimes of possession, “the sweep offence of choice in modern policing, being used in exactly the same manner as the original vagrancy laws.” In the wars on drugs and crime, “possession qua possession becomes the crime itself, or can be used as evidence of intent to commit a crime.” The role of the dog today, then, is to shift that sweep into the olfactory realm, picking up and pointing out smells that do not belong in the public sphere, filtered through the twinned categories of drug and crime. With the dog’s sweep, “the state is engaged in a de facto search of an indefinable area and persons in the vicinity, creating the grounds for a de jure stop and search.”

Like the old vagrancy laws, this power to police possession is a power to impose order:

Note, however, that most uses of stop-and-search powers actually reveal very little ‘crime’, in the sense of leading to formal arrests and prosecutions. What stop-and-search powers do, rather, is open the possibility for the police to impose their authority as state officials on individuals and groups considered problematic, threatening, or, in the terms of that key concept of police power, ‘disorderly’. The sniffer dog plays a crucial role in this process, thereby drastically extending the sensory reach of the technology of the state.

Regulation of the sniff in Canadian law

The police power to conduct sniff searches in Canada was not created by legislatures. Rather, as Richard Jochelson and Mark Doerksen show in their paper on the “surveillant Charter,” it emerged from a line of judicial reasoning creating a panoply of police powers under the auspices of the Charter.

In the companion 2008 cases Kang–Brown and AM, the Supreme Court of Canada endorsed sniff searches without prior judicial authorization on the threshold of “reasonable suspicion,” a less stringent standard than “reasonable grounds to believe” that an offence will be discovered which is generally required to authorize a search.

Reaffirming this standard in a pair of cases in 2013, the Court reasoned that: “Because they are minimally intrusive, narrowly targeted, and can be highly accurate, sniff searches may be conducted without prior judicial authorization.”

But, as Marks notes, this founding of the police power to use sniffer dogs on accuracy puts it on rather shaky empirical grounds. Furthermore, it is intrusive – indeed, it is only useful to police because it is intrusive: “The rejection of the submission that a dog ‘sniff’ is an intrusion of privacy, on the basis that odours emitted from a person are exposed to the plain perception of the public at large ignores the fact that dogs are used precisely because of their ability to detect and identify odours which are not exposed to the plain perception of the public at large.”

For Jochelson and Doerksen, by “generating lower thresholds for the deployment of police powers of surveillance,” in this and other cases, the Court departed “from the liberal legal role of constitutional guardianship by the judiciary, where the judiciary stands firmly in favour of civil liberties.”

K-9 Terror

Responding to Neocleous’ argument about the smell of power, Tyler Wall questions the premise that police dogs are valuable for their sense of smell, and just waiting to be replaced as soon as science can produce a technology of smell as discriminating as the dog’s nose. “Perhaps,” he writes.“Yet a critique of the snarling police dog, as opposed to the sniffer, not only helps unearth the importance of repression and fear in fabricating order, but starkly reveals the predatory animus of liberal order.”

Wall argues that

‘Although sniffing out drugs and bombs is one of the primary functions of the contemporary police dog, the pervasive image of the police K-9 as primarily a ‘detection dog’ in the War on Drugs often serves to obscure the ways in which the dog is simultaneously deployed for violence—a viciousness that is not unlike the violence that snarled its teeth in Abu Ghraib, the Gulags or apartheid. As ‘the organizer of repression and physical violence’, law inscribes police K-9 violence by providing it with official justifications and limits.’

For Wall, the figure of the beast lies at the core of the liberal state:

If the liberal state seeks to make its own acts of violence appear rational, measured and proportional, then the beastly figure of the security dog threatens to expose this liberal ideology as mystification, since the horrifying power of the state K-9 gains its political force from its own beastly, snarling identity.

The K-9 represents the power of the state as beast, dispatched to dominate the underclasses, seen, too, as beasts: “If liberal sovereignty has long spoken of itself as a divine beast that devours its bestial enemies, the living, breathing creature of the security dog identifies this animus within the material foundations of state power.”

Smell and terror in the policing of the liberal order

In his 1955 article, “Dogs in War, Police Work and on Patrol” police professional Charles F. Sloane writes:

If one gives some thought to the subject, there is but little difference between fighting an enemy in a declared war and fighting an enemy, the criminal, at home on the crime front. Both are comparable battles for the very existence of civilization, for without the thin wall of police protecting the people from criminal depredation, the world would soon revert to savagery and bestiality.

The use of dogs, for Sloane, is a key tool in holding the line between civilization and beastly anarchy, writing that “The use of dogs in tracking down escaped criminals and slaves has been commonplace in the United States for the past two centuries.” As Nikhil Pal Singh notes,

“In light of the emerging civil rights movement, Sloane’s present-tense juxtaposition of criminal and slave is notable.”

Singh writes that

An article in the same journal a few years later, assessing the progress of K-9 policing across U.S. municipalities, solidified the historical chains of racial meaning Sloane took for granted, linking the slave and felon as objects of police violence subjected to the nonhuman force of dogs. “Cities with large slum and deteriorating areas have more need for dogs than suburban communities,” the authors noted, with an important exception: “Suburban areas bordering on the central city have used dogs successfully in curbing the city’s overflow of crime.” Most cities were just starting to experiment with K-9 forces.

If the police dog was a key tool in maintaining the slave order, it would then be useful to maintaining the racial order to follow: “The city of Birmingham, Alabama, reported that police ‘dogs were not yet in use, but would be soon.’ Heavily infiltrated by the Ku Klux Klan, Birmingham’s police force, with its beasts unleashed, would soon be at the forefront of white Southern resistance to the civil rights movement.”

“Smoking gun”

Courts place a great deal of faith in the reliability of dog’s smell. In the Supreme Court’s AM, Lebel J. calls the information “highly meaningful,” pointing the police to “the sniffer dog’s equivalent of a smoking gun.” This trust in the dog’s senses is remarkable when contrasted with the generally negative attitude courts have to the sense of smell. In an earlier probe in this series, Olivia Khazam writes that

courts have expressed concerns that the sense of smell is unreliable, subjective, and open to abuse. These concerns derive from the socially-constructed hierarchy of the senses and the resulting associations of sight and hearing with the objective and the rational and of the lower senses, such as smell, with the subjective and irrational.

Neocleous gives the same reasons for why the olfactory has been left out of surveillance studies: “One reason might be that ‘olfaction is often deemed the least “intellectual”, or the least informative, of our senses’. Seemingly dealing with ‘the airy, the insubstantial, and the formless’, olfaction appears to be a poor cousin to sight when it comes to power.”

Neocleous cites Classen, Howes, Synnott to say that “Due to its marginal and repressed status in contemporary Western culture, smell is hardly ever considered as a political vehicle” so that “power appears odourless.”

This cultural devaluation of smell—coupled with uncritical reliance on the dog’s (supposedly) “naturally superior” power of smell—gives police a powerful tool to ‘extend their senses’ without scrutiny. At the same time, as Wall argues, the police dog plays a key role in enacting state terror on underclasses. For both Wall and Neocleous, smell and terror serve to create and reinforce liberal order. The challenge, then, is to sort out how to reconcile two ostensibly irreconcilable functions: the police dog as technology of smell, sweeping the horizon, and the snarling dog, instilling terror. This is a key question for proponents of police dogs like Sloane, who baldly states that the usefulness of the police dog is, at the same time in “the extraordinary acuteness of his senses, his friendliness toward his owner, his watchfulness, his speed, and whenever necessary, his viciousness.”

References

Government of Canada, Department of Justice, Charterpedia – Section 8 – Search and seizure. URL https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art8.html (accessed 4.28.20).

Jochelson, R., Doerksen, M., 2016. The Supreme Court of Canada Presents: The Surveillant Charter and the Judicial Creation of Police Powers in Canada, in: Lippert, R.K., Walby, K., Warren, I., Palmer, D. (Eds.), National Security, Surveillance and Terror: Canada and Australia in Comparative Perspective. Springer International Publishing, Cham, pp. 75–97. https://doi.org/10.1007/978-3-319-43243-4_4

Marks, A., 2007. Drug detection dogs and the growth of olfactory surveillance: Beyond the rule of law?. Surveillance & Society, 4(3).

Marx, G.T., 2002. What’s New About the” New Surveillance”? Classifying for Change and Continuity. Surveillance & Society 1, 9–29.

Neocleous, M., 2011. The Smell of Power: A Contribution to the Critique of the Sniffer Dog. Radical Philosophy.

R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19

R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220

R. v. Kang‑Brown, [2008] 1 S.C.R. 456, 2008 SCC 18

Singh, N.P., 2017. Race and America’s long war. Univ of California Press.

Sloane, C.F., 1955. Dogs in war, police work and on patrol. The Journal of Criminal Law, Criminology, and Police Science 46, 385–395.

Wall, T., 2014. Legal terror and the police dog. Radical Philosophy.

Further reading

It’s Right Under Your Nose! The Trial of the Senses and the “Plain Smell” Doctrine by Olivia Khazam

The Smell of Power A Contribution to the Critique of the Sniffer Dog by Mark Neocleous

Legal terror and the police dog by Tyler Wall

Drug Detection Dogs and the Growth of Olfactory Surveillance: Beyond the Rule of Law? By Amber Marks

Sniffing out danger by BBC Radio 4

The Quest to Make a Bot That Can Smell as Well as a Dog by Sara Harrison

All links accessed on October 20, 2019