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Odor and facts justify arrest


March 6, 2014
By Mike Novakowski

The smell of marijuana plus a few other facts provided reasonable grounds for an arrest and the subsequent search of a trunk.

In <R. v. Valentine, 2014 ONCA 147> the accused appeared to be inordinately nervous after being stopped for speeding at 10:20 pm. An officer obtained his licence, registration and insurance. A CPIC check revealed Valentine was on bail for assault and uttering threats and had a curfew prohibiting him from being outside his residence between 10 pm and 5 am. CPIC also flagged him for violence and as an escape risk.

Valentine became uncooperative and refused to get out of the car when told he was under arrest for breaching his bail. He was physically removed, arrested and frisked. Police located a cellphone and then put him in the back of the cruiser. Unsure if he was going to release him at the scene, the officer was concerned about safety, worried that there might be weapons in the car which Valentine could access if released.

The officer smelled a strong odour of marijuana when he put his head in the car and also spotted a second cellphone and large amount of cash in a jacket lying across the passenger seat. Believing Valentine possessed marijuana, he arrested him for possession, then returned to search the car incidental to that arrest. He found a large partially-open duffle bag in the trunk which contained nine vaccuum-sealed cylinders holding 18 pounds of marijuana.

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The officer could smell marijuana coming from the cylinders and noted the duffle bag also gave off a heavy smell. The car was towed to the police station. Two officers examined it and both could smell a strong odour of marijuana coming from it.

Valentine challenged the reasonableness of the search under <s. 8> of the Charter before the Ontario Court of Justice, arguing the officer could not have smelled marijuana when he conduced his safety search in the front of the car. He said he vacuum-sealed the marijuana in plastic and placed it in a water-resistant duffle bag to mask its smell. As well, he said he would periodically open the car window to circulate the air and conduct smell tests to ensure the marijuana wasn’t giving off any noticeable odour.

Valentine also called an expert who testified about the olfactory ability of humans, the odour containment properties of packaging and the smell characteristics of raw marijuana. After conducting his own tests, the expert opined that the officers’ evidence that they could smell raw marijuana in the car was simply not credible.

Using a progressive analysis of the police interaction with Valentine, the judge concluded that they stayed within their authority as the situation developed. The judge first ruled that the officer had the authority to stop Valentine under both the common law and Ontario’s Highway Traffic Act to obtain relevant documents such as a driver’s licence and to perform the CPIC search.

The CPIC information then provided reasonable grounds, both subjective and objective, for the breach of recognizance arrest. The search of the area proximate to the driver’s seat was proper as a search incident to the arrest on the breach charge because the officer was considering releasing Valentine and was concerned that doing so might put police safety in jeopardy if there were weapons in the car.

The possession arrest was also lawful because the officer smelled raw marijuana and discovered another cell phone and a large amount of cash. The search of the entire car incident to the possession charge, which led to the discovery of the large quantity of marijuana, was also valid.

There were no Charter breaches and, even if there were, the evidence was admissible under <s. 24(2)>. Valentine was convicted of possessing marijuana for the purpose of trafficking. He took his challenge to the Ontario Court of Appeal, again submitting that his <s. 8> Charter right was infringed and the evidence ought to have been excluded under <s. 24(2)>.

{Arrest – breach recognizance}

Valentine suggested that the curfew breach arrest wasn’t based on reasonable grounds because the officer knew he had an employment exception. CPIC indicated that he was allowed to be out of his home during his curfew hours for the purpose of employment and he told the officer about a letter from his employer giving him permission to be outside at that time. Justice Epstein disagreed.

The officer had subjectively believed Valentine was in breach – he was stopped out past his curfew – and his grounds were objectively reasonable. The officer only had Valentine’s assurance he was allowed to be out at night.

“(O)n its own, the officer’s knowing about the employment exception (did) not necessarily lead to the conclusion that his belief that the [accused] was in breach of his recognizance was unreasonable,” said Epstein.

<Determining whether the employment exception operated at that particular time and in those particular circumstances depended on obtaining additional information about the circumstances in which the appellant was driving along Highway 401 late at night and then assessing the validity of that information…

It was late at night. The (accused) had serious criminal antecedents, was on bail for serious offences and was exhibiting threatening behaviour. In my view in these circumstances the officer is not required to investigate and try to rule out all possible explanations for the [accused’s] being out past his curfew before making an arrest.>

{Safety search – front}

The warrantless search of the front area of the car incident to the arrest was also lawful.

“A search incident to arrest is only valid if it is conducted for a legitimate purpose,” said Epstein. “The three main purposes of a search incident to arrest are to ensure the safety of the police and the public, to protect evidence from destruction and to discover evidence that may be used at trial.”

The officer said he searched the vehicle for safety reasons. Valentine contended the search wasn’t done for a valid objective. In his view, officer safety was an illogical reason since he was confined in the back of a police cruiser when the officer decided to search and therefore their safety could not have possibly be in jeopardy. Again, the appeal court disagreed.

The trial judge did not err in finding that searching the front of the car was reasonably based on officer safety since the judge found that the officer was concerned there may be weapons in the car, which was valid in the light of Valentine’s criminal antecedents and the disturbing behaviour he had exhibited.

{Arrest – possession of marijuana}

The appeal court also rejected Valentine’s submission that the officer could not smell marijuana in the course of the safety search. The trial judge made no error in accepting his testimony and rejecting the expert’s evidence. The odour of raw marijuana – along with the cash, a second cell phone and Valentine’s behaviour during the interaction – provided the necessary reasonable grounds to justify the possession arrest.

{Evidence search – the car}

The possession arrest entitled police to search the rest of the car, including the trunk, to obtain further evidence of the offence.

“As (the officer) carried out the search for the legitimate purpose of discovering evidence connected to the arrest for possession, it was a lawful search incident to arrest,” said Epstein. The search of the trunk did not breach <s. 8> of the Charter and there was no reason to consider <s. 24(2)>.

Valentine’s appeal was dismissed.


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