Can Police Dogs Smell Child Pornography?

Drug-sniffing dogs have long been used by police to sniff for drugs in order to get probable cause to search one’s car to find drugs. Now police are beginning to use dogs to sniff out and crack down on sex offenders. A dog that could sniff out electronic devices was key to the arrest of Jared Fogle, the Subway spokesman, during a recent investigation regarding suspected child pornography crimes.

How Dogs are Being Trained and Used to Detect

Trainers are spending around four months with these special dogs using a food reward system to reinforce good behavior, which in this case constitutes finding electronic storage devices.¹ Electronic storage devices apparently emit a chemical scent from its components that canines have the ability to detect.²

Trainer Todd Jordan, simply gave the command “seek” and Bear, a black labrador, was able to sniff out a thumb drive that the authorities were unable to find during a search of Fogle’s home.³

The Fourth Amendment and Dog Sniffs

Generally, police must obtain a warrant supported by probable cause to search your home or any evidence found may be inadmissible in court.

However, whether you have a protected Fourth Amendment interest depends on if you have a reasonable expectation of privacy in your property and person that is searched by police. If your claimed expectation of privacy is one the courts have not accepted as reasonable, then it is not considered a search for purposes of the Fourth Amendment.

You generally enjoy greater Fourth Amendment privacy interest while in your home than while in your car or in public. In the context of a traffic stop, a dog sniff is not a search so long as police do not detain you beyond the time needed to issue a ticket or make a reasonable inquiry.⁴ Dog sniffs cannot be used, however, as a basis to form probable cause to get a search warrant to search your home, even if police suspect you of criminal wrongdoing.⁵

This means that police must conduct an independent investigation in order to show probable cause necessary to get a warrant to search your home without the assistance of a dog’s heightened sense of smell. Once police have a search warrant, only then may they use dogs to assist them in finding possible illegal contraband.

Though the Supreme Court cases on this point all have to do with dogs trained to sniff out drugs, courts would likely apply the rulings from Rodriguez, Harris, and Jardines in the context of dogs sniffs for electronics. Police may use these special dogs’ enhanced sense of smell in the future to sniff out other information trails, aside from busting drug and sex offenders, such as finding evidence of terrorism or financial crimes.

Accuracy of Dog Sniffs to Find Electronics Devices

The reliability of using dogs to illegal contraband has long been questioned. Many critics have pointed out that dogs have a tendency and desire to please their owners or handlers, in this case the police.⁶ This tendency has led to false positives and allows police to expand the scope of a search even when it’s backed by a valid search warrant on nothing more than a hunch—precisely what the Fourth Amendment was designed to protect against. This is especially problematic when these dogs are not trained independently of their handlers’ queues from their own underlying suspicion.⁷

Not only can handlers create alert bias, but the dog’s reliability can also be questioned based on the canine’s own motivation for a food reward. Biological factors, such as the dog’s age and natural ability may also affect its’ accuracy. Currently, no national standard exists to certify a police dog’s qualifications.⁸ Until then, the credibility of police dogs and police reliance on them for forming probable cause will continue to be scrutinized.

Contact the Skilled Criminal Defense Lawyers at Wallin & Klarich

If you or a loved one has been charged with a child pornography crime in California, you need to contact an experienced Wallin & Klarich criminal defense attorney immediately. At Wallin & Klarich, our skilled attorneys have been successfully defending clients facing state and federal charges for over 30 years. We will meet with you immediately to review the facts and plan a defense strategy that will help you get the best outcome possible in your case.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.

^{1. https://www.nbcnews.com/news/us-news/porn-sniffing-dog-helped-bring-down-subway-star-jared-fogle-n415826↩}

^{2. Id.↩}

^{3. Id.↩}

^{4. Rodriguez v. U.S. (2015) 135 S.Ct. 1609 [191 L.Ed.2d 492]; Florida v. Harris (2013) 133 S.Ct. 1050 [185 L.Ed.2d 61]↩}

^{5. Florida v. Jardines (2013) 133 S.Ct. 1409 [185 L.Ed.2d 495]↩}

^{6. https://www.washingtonpost.com/news/the-watch/wp/2015/08/04/federal-appeals-court-drug-dog-thats-barely-more-accurate-than-a-coin-flip-is-good-enough/↩}

^{7. Id.↩}