POT BUST EVIDENCE GOES UP IN SMOKE

Just because Delta Police smelled marijuana coming from a man's van,
doesn't mean they were justified in searching it and, upon finding
four garbage bags filled with pot plants, arresting him for possession
for the purpose of trafficking.

In a written decision released last week (July 22), Surrey Provincial
Court Judge Peder Gulbransen ruled that the June 2007 search and
arrest were unlawful and that the evidence obtained is therefore
inadmissible in court.

"Considering all of the relevant factors, I find that the defence has
established, on a balance of probabilities, that the admission of the
evidence obtained in the unlawful search of (the man's) motor vehicle
would bring the administration of justice into disrepute," Gulbransen
wrote in the ruling.

"I therefore order that the evidence obtained in the search be
excluded."

On June 20, 2007 Delta Police were preparing to execute a search
warrant on a home they believed contained a marijuana grow-op.

Spotting a van slowly driving by the residence for the second time in
a few minutes, one officer stopped the vehicle, suspecting the driver
was connected with the person growing the marijuana.

According to court documents, the officer detected the smell of
marijuana coming from the open driver's window and immediately
arrested him for possession of a controlled substance.

Another officer searched the car, where he found four garbage bags on
the rear seats, each containing a "large plastic container filled with
marijuana clones," according to court documents.

The driver was subsequently charged with possession of marijuana for
the purpose of trafficking.

In its case, the Crown argued that that the officer had reasonable
grounds to suspect the man was involved in the growing and dealing of
marijuana and therefore had the power to briefly detain him for
investigation.

The Crown said the man was in possession of a controlled substance,
and as such, the search of the vehicle was "incident to a lawful arrest."

But the defence countered that the officer stopped the vehicle "on a
hunch, without any reasonable basis to believe the accused was
involved in criminal activity."

The arrest was unlawful, the defence argued, because it was based only
on the smell of burned marijuana emanating from the vehicle.

This established only that the accused had possessed marijuana in the
past, they said.

That particular marijuana could no longer be in the car, the defence
argued, "because it had gone up in smoke."

Regardless, in such a case the amount in question "would certainly be
less than 30 grams, which under the Controlled Drugs and Substances
Act is a strictly summary conviction offence," the defence added.

An officer can only arrest a person for a summary conviction offence
if he or she finds the person actually committing the offence.

In his written reasons for judgement, Gulbransen said that the mere
smell of burned marijuana coming from a vehicle is not sufficient to
constitute reasonable grounds for a search."

He added: "Taking such quick action based on the smell alone makes it
very difficult for a court to assess the objective basis for the
officer's grounds to search.

"An odour of burned marijuana can be fleeting or evanescent. It is
subject to different interpretations, depending on the experience of
the observer and on the acuity of the person's sense of smell. It
cannot be measured or recorded."

The Crown did not establish that the arresting officer's expertise in
analyzing the odour of marijuana was "so exceptional that his
evidence, based on detecting the odour over a matter of seconds,
should be given significant weight," Gulbransen wrote.

"I conclude, therefore, that on the evidence led on this hearing, (the
officer) would not have had lawful authority to search the van... In
this case the arrest was unlawful, as was the search that followed."