The Nasty Smell of Kiddie Porn

The headline is misleading, but definitely catchy:

Porn-Sniffing Dog Helped Bring Down Subway Star Jared Fogle.

No, dogs cannot smell porn. Not kiddie porn. Not adult porn. Not lawful or unlawful porn. Not porn at all.   A $5 footlong, sure, but pretty much anyone can smell that, not that they necessarily want to unless they’ve made millions off them.

Yet, apparently, dogs (Labradors in particular) can be trained to sniff out data storage devices. Whoda thunk?

A rambunctious black Labrador named Bear — one of only five dogs in the nation trained to sniff out electronic data devices — played a key role in thearrest of former Subway pitchman Jared Fogle on child-porn charges.

The 2-year-old rescue pooch nosed out a thumb drive that humans had failed to find during a search of Fogle’s Indiana house in July, several weeks before he agreed to plead guilty to having X-rated images of minors and paying to have sex with teenage girls.

According to Bear’s trainer, the dog was trained to smell the chemicals used in the manufacture of the devices, in this case a thumb drive. And if the substance of the article is true, it works, as the dog found a thumb drive that otherwise eluded detection.

Bear’s dog whisperer, Todd Jordan, gave NBC News a demonstration of how he works his magic, walking him through an apartment while repeatedly giving him the command “Seek!”

The dog zeroed in on a kitchen drawer, which Jordan opened to reveal a device. “Good boy!” he told Bear, giving him a handful of food.

While the question of whether dogs can and should be used as a proxy for probable cause, whether to search directly or to obtain a warrant to search, is one of grave concerns, as it’s fraught with substantial failings, plus its efficacy is little different from a coin toss, the “porn sniffing dog” presents a very different picture.

Assuming that the dog was brought in following a search pursuant to a properly authorized warrant which enabled the seizure of all digital media storage devices, and only with such proper authorization, sniffed out a drive that was inexplicably left inside an aluminum foil wrapped Italian BMT in the freezer, it’s a totally acceptable success story. Yay, doggie.

So what if the pooch falsely reacted a half dozen times along the way. He scratched at a drawer? So they open the drawer, find nothing and move on. No harm, no foul.  There is no mention of whether the chemicals that give rise to an alert for a thumb drive are also found in, say, Subway Herb and Garlic bread.  And if so, it just provides another place to look, which is what one does when executing a search warrant.

But success stories like this, adding yet another data point to the mythical status of the dog’s nose, also carry the potential to mistakenly extrapolate one success into an erroneously conceived basis for other, very harmful, uses.

Consider such a dog being used to sniff out storage devices at the border because they weren’t put through the x-ray machine as rules require.  And so, a three-year-old gets a deeply disturbing full body rubbing (though not by Jared, because he never saw the pizza box employment opportunity) when his only crime was touching his Gameboy (that’s not a euphemism) before boarding.

No doubt, the possibilities in the real world far exceed my meager imagination of how sniffing out data storage devices could lead to unanticipated and unauthorized searches. The point is that there can well be perfectly viable, indeed, quite sound, uses for the dog’s particular talents, that don’t implicate a constitutional right, and then there are other uses that will stink.

Much the way other dogs can pick up the scent of a fugitive or a cache of cocaine, Bear can smell the components of electronic media, even a micro-card as small as a fingernail that a suspect could easily hide.

“Labs are the best on this,” said Jordan, fending off playful licks from Bear. “They’ll do anything to please their owner.”

That a dog can sniff out a tiny micro-device this is really quite remarkable.  And no one would suggest that there is something wrong with law enforcement’s ability to locate evidence of electronic crime under the right circumstances.

But then, the line that “they’ll do anything to please their owner” sets off alarms.  That too is true of the drug sniffing dogs, who will alert at the slightest hint that it’s what would make their owner happy.  And when the owner, or better stated, handler, wants a reason to search, there’s a dog to provide the excuse.

The issue never was, and is not now, that dogs are not useful tools in finding scents that enable the locating of contraband, whether it’s those 27 kilos of coke or that fingernail-sized micro-chip.  It’s all good, provided it’s not the basis for probable cause to search in the first place.

And yet, some judge, somewhere, will be told, and believe, that dogs can not only smell the chemicals used in the manufacture of digital storage devices, but can smell the child porn embedded.  And some prosecutor, somewhere, will argue that kiddie porn smells different, emits the stench of horror of rape and abuse, of a child that must be saved.  Sign that warrant for the children, your honor.

And some judge, somewhere, ignorant of the limits of dog sniffs, of their false positives and owner pleasing desires of a Lab, and finding some bizarre common sense acceptance of the notion that child porn smells different on a thumb drive than any other digital content, will put his name on that warrant.

Bear, the dog, did good here, but it’s critical to understand and remember that it’s good because no one relied on a dog to provide probable cause to search for child porn.  No matter what argument is proffered, even the sweetest and best trained dog doesn’t have the ability to smell the awful odor of evil content.

25 thoughts on “The Nasty Smell of Kiddie Porn

  1. Ehud Gavron

    I saw this story, but it required facebook to be able to comment and I don’t so I didn’t. Here’s my second bite at that apple.

    Digital media doesn’t emit anything. A flash drive smells the same as everything else that came out of that fab like the hard drive inside a computer, the memory chips inside your cellphone, the garage door clicker with the “rolling code”, and your new OLED TV. The data on it is digital and covered in the commentary above quite nicely. Succinctly – the nature of the data does not change its odor to a dog, only to the PR machinery of law enforcement.

    …and then they sold the dog.

    Super awesome dog found Jared-pr0n and alerted only on that and OMG we should give this dog the legion of honor — handed out in France like cheese to a train-rider — but no. They sold the dog.

    He must have alerted to something at his handler’s house.

    E

    1. SHG Post author

      I wish I had the science chops to delve deeper in the chemistry of drives giving rise to this story. But I don’t. What I do surmise, however, is that whatever chemicals are being sniffed, they likely exist in a wealth of other devices, and perhaps a lot more. There may be no end of false positives, which means the dog will find a hard drive, together with a ton of wholly unrelated and inappropriate stuff.

      While that appears obvious, it also appears nowhere in the article.

      1. Jim Sweet

        “There may be no end of false positives” – That’s a feature for the LEO crowd, not a fault.

      1. Dan

        It actually makes a good point about police dogs. SPOILER ALERT.

        Jeff has adopted a dog that is a former/retired police cadaver search dog. He takes the dog over to a restaurant that he and Larry are opening. The dog starts scratching and pawing at a particular spot on the floor, as if it is “alerting” to a cadaver. They decide to call the police, the police come and say well, that’s a highly trained, precise animal, we’re going to have to investigate. A construction crew comes in and digs up the floor, delaying the restaurant opening and creating a mess. The floor dug up, the dog goes to work and finds a bra. That’s it. Nothing else. Jeff is aghast that his cadaver sniffing dog is a bra sniffing dog.

        Query- should one attach a copy of this episode to a motion to suppress dog-based evidence?

        1. SHG Post author

          So you took my reply as an opportunity to tell me all about the story. No, do not attach a copy to a motion to suppress. Trust me on this.

  2. Vin

    You remind me of that scene in Sea of Love where Pacino sees otherwise pleasant neighborhoods as murderous dens of bloody carnage.

    Meager imagination my ass.

  3. DaveL

    It occurs to me that there are some, er… trace substances with distinctive smells that are more likely to be left on a device containing porn.

  4. phroggie

    I’ve heard about these canines in the past from my technologist peers. Rumor has it that these dogs are quite adept at sniffing their way through advanced cryptography in exchange for belly rubs. Thankfully, I’ve yet to hear of an instance where the silicon-die-focused variety were used as pretext for so much more, unlike the more common coke-addicted variety.

  5. Tice with a J

    Though the scam seems by now quite well-worn
    It’s still one that judges won’t scorn
    So to nab our sub seller
    We’ll send in old Yeller
    And say he can smell kiddie porn

    1. Fubar

      My porn sniffing dog can smell bits.
      When he smells ones or zeros, he sits.
      Once he sets to his task he
      Can even read ASCII,
      And he barks once for *ss, twice for t*ts!

      1. EarlW

        The ways of law are chimeric,
        at times the task seems homeric.
        The comments in rhyme,
        have me reading each line
        are best when written limeric.

        1. Ehud Gavron

          The dog’s awesome nose is all fiction
          because the drive was secured with encryption.
          There’s no cop who was born
          who’d ignore said child porn
          in a career-promoting conviction.

            1. phroggie

              We’re quite sorry, Mr. Greenfield,
              But limericks are tough to wield.
              Pentamic poppycock,
              Seems rather ad hoc.
              Still, the haiku shall stop and yield.

              This is totally not because Ehud took me to haiku school, I swear…

  6. Ken Hagler

    When I read about a thumb drive that “humans had failed to find” being found by a magic dog, I immediately think that the drive was planted by the dog’s handler.

  7. Jill D.

    Can Bear (or other eager-to-please porn/drug-sniffing K-9 cops) be subpoenaed?
    Can they be deposed?
    Do they sign/paw-print the chain of custody?
    Can they be cross-examined on the witness stand?
    Can the defense voir dire these experts?
    If they perjure themselves for liver treats, do they get sent to the pound? Get put down? Swatted with a rolled-up newspaper? Lose their pensions? Six weeks paid leave (paid in liver treats) at the dog park?

    1. SHG Post author

      I’ve made this point many times. But we can’t blame the dog for being a dog, just those who use the dog for their own purposes.

  8. Rich Rostrom

    The headline is complete rubbish. The dog is trained to find a thumb drive. No one claims it can find any particular content on the drive. If the thumb drive is the legitimate object of a warranted search, the dog’s ability is useful and appropriate.

    Nothing to snark about here.

    1. SHG Post author

      Normally, a comment this lacking in substance would be trashed, but I’m fascinating by its utter vapidity. Is there a point, or are you one of those OCD people who find it impossible not to comment, or are you just incapable of writing words comprehensible to anyone other than the voices inside your head?

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