DRUG CASE AXED OVER VIOLATION OF RIGHTS

Search That Found 8 Bags of Pot Plants Illegal

DELTA - A provincial court judge has thrown out charges against a man
who had four garbage bags full of marijuana plants on the back seat of
his car when he was stopped by Delta police.

Judge Peder Gulbransen found that police had seriously violated the
man's constitutional rights because there were insufficient grounds to
search the car, even though a strong smell of recently burned
marijuana was coming from the vehicle.

The judge ruled the smell was evidence of a past offence of possessing
marijuana, allowing the officer to check whether the driver was
impaired by use of the drug, but did not give sufficient grounds to
search the car without a warrant since no marijuana was visible.

Police stopped the vehicle driven by David Razah Hood on June 20,
2007, when Delta police officers were preparing to execute a search
warrant on a house they believed was being used for growing marijuana.

Police were investigating a person named Sean Logan and had a
residence under surveillance when a vehicle twice passed the residence
within a few minutes. On the first pass, the driver slowed and seemed
to stare at the two officers outside the residence, suggesting concern
about their presence.

The officer suspected that the driver was in some way connected with
the person who was growing marijuana.

An officer stopped the vehicle and detected a smell of burned
marijuana coming from the open driver's window, so immediately
arrested Hood for possession of marijuana.

Another officer searched the car, finding four garbage bags on the
rear seats. Inside each bag was a large plastic container filled with
marijuana starter plants to be used in growing operations.

Hood was subsequently charged with possession of marijuana for the
purpose of trafficking. At trial, the accused argued that the initial
vehicle stop and subsequent arrest were unlawful because the officer
stopped the vehicle on a hunch without a reasonable basis to believe
the accused was involved in criminal activity.

The Crown's position was the officer had reasonable grounds to suspect
that Hood was involved in the growing or trafficking of marijuana, and
that police had the power to briefly detain the accused for
"investigative detention."

The judge said there have been many cases where the courts have upheld
the validity of arrests, and subsequent searches, based on an officer
detecting an odour of burned marijuana.

"In most of these cases, however, there were additional circumstances
which supported the officer's belief that the person arrested was in
possession of marijuana," the judge pointed out. "Where an arrest has
been made solely on the basis of a police officer detecting an odour
of burned marijuana, the courts have generally ruled that this fact
alone does not establish sufficient grounds for an arrest."

The judge found that current possession could have been established by
the officer seeing the driver smoking marijuana, or by seeing the
remnants of burned marijuana in the ashtray or elsewhere in the
vehicle. But there was no such evidence in this case.

The judge pointed out the drug laws allow for a search or seizure
without warrant in exigent circumstances which render it impracticable
to obtain a warrant, but the Crown did not argue that there were
exigent circumstances in this case, so police did not have the lawful
authority to search the vehicle.

The full court judgment is available online at:
http://www.provincialcourt.bc.ca/judgments/pc/2008/02/p08_0217.htm