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Pot Smell Justified Dwelling Search, Judges Say
Pubdate: Thu, 23 Feb 2006
Source: Globe and Mail (Canada)
Copyright: 2006, The Globe and Mail Company
Contact: http://www.globeandmail.ca/
Details: http://www.mapinc.org/media/168
Author: Shannon Kari
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
POT SMELL JUSTIFIED DWELLING SEARCH, JUDGES SAY
VANCOUVER -- The smell of marijuana coupled with a suspect speaking a
foreign language can be sufficient grounds for police to enter a
private home without a search warrant, the British Columbia Court of
Appeal has ruled.
The decision could expand the power of police to enter homes without
warrants under certain conditions, such as an officer smelling
marijuana in a dwelling.
The appeal court upheld the marijuana-trafficking convictions of Thi
Thu Thao Luu and Phieu Su Tran, who were arrested by Vancouver police
on May 27, 2002. Ms. Luu eventually received a suspended sentence. A
nine-month conditional sentence was imposed on Mr. Tran.
The evening of their arrest, a constable knocked on the door of a
basement suite after a complaint was made that a car was blocking a
driveway. The suite resident was believed to be the owner of the car.
The officer testified that Ms. Luu and Mr. Tran opened the door and
then shut it as they stepped outside on the landing.
The couple appeared to be nervous and standing too close together,
the officer testified. He said he smelled "bulk marijuana" and then
grabbed Mr. Tran's arm and arrested the man when he began speaking to
Ms. Luu in a language the officer believed to be Vietnamese.
The officer said he struggled with Mr. Tran, who pulled on his arm
and both men fell through the doorway into the suite. Both suspects
were handcuffed and police found more than 10 kilograms of marijuana
in the apartment.
The defendants argued that the search of their apartment violated the
Charter of Rights and the officer's testimony was "inherently incredible."
Provincial Court Judge Herb Weitzel disagreed and found that the
officer did not deliberately enter the suite, but "stumbled" into it
after struggling with Mr. Tran.
Judge Weitzel concluded that the officer had "objectively reasonable
grounds" to believe an offence was being committed because he smelled
marijuana and Mr. Tran began speaking in Vietnamese.
The Court of Appeal, in a decision written by Mr. Justice Kenneth
Smith, agreed with the lower-court judge. "The objective observer,
unable to see what was inside the suite, might well be alarmed by the
sudden shift of the appellant Tran from English to a language the
observer did not understand," Judge Smith wrote in the Feb. 20 ruling.
Ms. Luu was not permitted to call a lawyer for several hours, after
she was fingerprinted and strip-searched at the police station. The
Court of Appeal agreed that this violated her Charter rights, but
since it was well after the marijuana was discovered, it was not
sufficient to result in an acquittal.
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