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BC Court of Appeal: Pot Smell, Foreign Language Justify Search
By Hempology | March 2, 2006
The entry and search of a residence without a warrant is upheld and a precedent set
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.
by Shannon Kari (24 Feb, 2006)
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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