Jim Finnel
Fallen Cannabis Warrior & Ex News Moderator
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.
News Hawk: User: 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: Canada.com
Copyright: 2008 Canwest Digital Media
Contact: About | canada.com
Website: Drug case axed over violation of rights
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.
News Hawk: User: 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: Canada.com
Copyright: 2008 Canwest Digital Media
Contact: About | canada.com
Website: Drug case axed over violation of rights
