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Sense of smell may be used for grounds

Police may use their sense of smell when deciding whether to proceed with an investigation.

In R. v. McNeil, 2013 NLCA 52 a police officer received source information on three separate occasions that the accused was moving marijuana. The officer considered the informant reliable, having received information in the past that had been corroborated by positive searches and arrests, including the seizure of cocaine and marijuana.

The informant had provided information more than 40 times, had no criminal record and had been paid. On the first occasion, the source said McNeil "was moving marijuana in a pickup truck." The officer located McNeil and a passenger in a Dodge Ram, identified them but took no further action that day.


December 3, 2013
By Mike Novakowski

Police may use their sense of smell when deciding whether to proceed with an investigation.

In R. v. McNeil, 2013 NLCA 52 a police officer received source information on three separate occasions that the accused was moving marijuana. The officer considered the informant reliable, having received information in the past that had been corroborated by positive searches and arrests, including the seizure of cocaine and marijuana.

The informant had provided information more than 40 times, had no criminal record and had been paid. On the first occasion, the source said McNeil “was moving marijuana in a pickup truck.” The officer located McNeil and a passenger in a Dodge Ram, identified them but took no further action that day.

Two weeks later the informant told police McNeil had brought out another “load of weed” last week. Police learned through a CPIC search that he had been previously charged with a simple possession offence. Then, four days later, the informant stated McNeil was on his way with a load of marijuana and that he “never moves less than two pounds.”

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Police looked for McNeil, found him alone driving the Ram and pulled him over. An officer approached and, as soon as the window was opened, instantly smelled the overwhelming odour of fresh, unburned marijuana. McNeil was immediately arrested, advised of his right to counsel, silence and police caution.

He was searched and police found money, a red cell phone and a silver coloured marijuana grinder. In the truck, police found marijuana in four mason jars, four large plastic bags inside a hockey bag and a small bag in a tool box. They also found $2,200 cash under the rear seat and in the glove compartment. In total, 3.15 pounds of marijuana was seized and McNeil was charged with possessing it for the purpose of trafficking.

In Newfoundland Provincial Court the judge concluded McNeil had not been arbitrarily detained under s. 9 of the Charter. Police relied on the informant’s tip, which they had reason to consider reliable. They also knew McNeil and his vehicle from the earlier stop, knew he had recently been charged with drug possession and had received information from a reliable source on three occasions that he was moving more than two pounds of marijuana at a time.

They smelled the overwhelming odour of fresh, unburned, marijuana coming from the truck. As well, the judge noted, “the smell of marijuana… provides the grounds necessary for the police to believe that the occupant(s) of the vehicle from which the smell of marijuana emanates are or have been in possession of marijuana.”

McNeil was convicted of possessing marijuana for the purpose of trafficking and sentenced to nine months imprisonment less 15 days served on remand.

McNeil argued in the Newfoundland Court of Appeal that he had been arbitrarily stopped and detained and the vehicle search violated his rights under s. 8 of the Charter. Justice Welsh, delivering the court’s opinion, disagreed. McNeil’s vehicle was stopped on the basis of the informant’s information, which the trial judge accepted as reliable.

The investigative detention was short in duration, said Welsh. The police officers reported an overwhelming smell of marijuana emanating from inside the vehicle. (The accused), who was the lone occupant, was immediately placed under arrest and advised of his constitutional rights. The search did not take place until after (the accused) was arrested. In these circumstances, the investigative detention could not be said to be arbitrary.

The arrest was also lawful. The informant’s information was corroborated by other factors.

In particular, (the accused) was alone in the vehicle, the police reported the overwhelming smell of marijuana, they knew (the accused) and his vehicle from the (earlier) stop and they knew he had earlier been charged with drug possession. It follows that there is no basis on which to conclude that the trial judge erred in determining that (the accused’s) arrest and the consequent search did not infringe sections 8 and 9 of the Charter (para. 25).

On the issue of smell, the court noted that “a police officer may use his senses, including smell, as one element in determining the presence of grounds to proceed with an investigation… The smell was just one of many factors on which the police proceeded and was appropriately considered as such by the trial judge.”

McNeil’s Charter rights were not infringed and his appeal was dismissed.


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