POT SEARCH WITHOUT WARRANT RULED LEGAL

"Exigent Circumstances" Justifies A Warrantless Search

Can a police officer knock at a citizen's door to ask about a neighbourhood
crime and then enter the home without a search warrant to arrest the
occupants because the officer detects a powerful smell of marijuana growing
inside?

Yes, the B.C. Court of Appeal recently ruled in the case of Chun Quan Duong
and Yen Thi Tran.

A Vancouver police officer responded to a report of a home invasion and was
assigned to canvass homes for possible witnesses. He knocked at the front
door of one home and, as the door opened, felt a rush of warm, humid air
carrying the smell of both burning and growing marijuana.

As the officer was questioning Duong, he saw another person, Tran, inside
the house. The officer concluded from the smell and Duong's demeanour that
there was a marijuana-growing operation inside, so he contacted another
officer, who helped arrest the occupants for cultivating marijuana.

One officer stayed guard while the other went to obtain a search warrant.
The pot found in the basement had an estimated value of $146,000.

Duong and Tran were convicted of drug offences at trial, where the judge
ruled that the circumstances justified a warrantless search. The initial
officer at the scene testified that he was concerned that if he left to
obtain a search warrant, Duong could escape or destroy evidence.

The pot growers appealed, arguing that the trial judge erred in the finding
that there were "exigent circumstances" to justify a warrantless search.

The appeal court found the officers' actions reasonable. The Criminal Code
allows police to enter a house without a warrant for the purpose of
apprehending a person in circumstances where the officer has reasonable
grounds to believe that it would be impracticable to obtain a warrant
because of urgent circumstances.

Is it legal for police to stop a drug dealer on the street for several
minutes in order to take a photograph in order to prove the dealer had sold
drugs seconds earlier to an undercover officer?

Yes, the B.C. Court of Appeal recently decided, finding that such an
incident does not amount to illegal detention.

The case involved Carlos Wilson Acosta-Medina, who was convicted of cocaine
trafficking on Jan. 19 last year. He was among those rounded up after an
undercover drug-buying operation known as Project 700, which was designed
to clean up drug trafficking in the 700-block East Hastings of Vancouver.

The police procedure involved an undercover officer making a purchase on
the street while another officer -- known as the "Eye" -- watched the
transaction nearby. On a signal from the purchaser that a buy had occurred,
the Eye notified a team of officers who then arrived to confirm the
seller's identification.

Police stopped the suspect under the pretext of an immigration check,
giving the undercover officer who made the purchase the opportunity to
drive by to see whether the team had the right man. The team then took a
Polaroid photograph of the seller and let him go until the end of the
operation. The seller was not warned or given a Charter warning.

Acosta-Medina appealed, arguing that when he was stopped by police, he was
not advised of his right to legal counsel, which violated his rights
protected by the Charter of Rights and Freedoms, so the evidence of his
identification created during the detention ought to have been excluded by
the trial judge.

The B.C. Court of Appeal found the police actions were legal because the
suspect voluntarily remained on the street for three or four minutes --
there was no effort made by police to detain him. He was asked a few
questions by police, who took his photo and sent him on his way.

"He was already on the street open to view by anyone who wished to see
him," Appeal Court Justice Ian Donald wrote. "In my opinion, this is not a
situation where it makes any practical sense to speak in terms of the
assistance of counsel."