By Tracey Tyler, Legal Affairs Reporter

MARIJUANA SMELL INSUFFICIENT REASON FOR ARREST:

Court Ruling May Lead To Major Shakeup In Standard Police Practices, Lawyer Says

Police do not have an automatic right to arrest someone for suspected drug possession based on the smell of marijuana coming from a vehicle, Ontario’s highest court has ruled.

While there may be cases in which officers’ noses are so highly developed they can say with certainty pot is inside, they will usually need other reasons to justify an arrest or search of a car, the Ontario Court of Appeal says.

The court made the ruling yesterday in the case of Peter Polashek, whose car was searched after a Peel police officer stopped him for a traffic violation on July 5, 1996 in Malton and noticed a strong marijuana odour.

The decision could cause a significant shakeup in standard police practices, said Polashek’s lawyer, Alan Young.

In Polashek’s case, the officer couldn’t say whether the smell of burned or unburned marijuana was coming from the car.

Polashek was asked to step out and was searched. The officer claimed to find what looked like hash and Polashek was arrested for marijuana possession and searched further. Over $4,000 in cash turned up in his pockets.

As he sat in a cruiser, a search of his trunk uncovered three shoeboxes containing marijuana and a small amount of LSD.

Nearly 15 minutes after his arrest, Polashek was advised of his right to call a lawyer and asked about the drugs: "What can I say? You caught me; I’m busted." he replied.
(Marijuananews note: Never say that -- or anything else -- without talking to your lawyer. "I am not going to say anything without talking to my lawyer." Please memorize that.)

He was later convicted of drug possession and sentenced to five months in jail. While his appeal centred on the smell issue, the appeal court gave other reasons for quashing his conviction and ordering a new trial.

Police conscripted Polashek’s incriminating statement after violating his right to call a lawyer without delay, said Mr. Justice Marc Rosenberg, writing for a unanimous three-judge court.

Federal prosecutor Graham Reynolds conceded the delay was unconstitutional, but noted Polashek waived his right to counsel when eventually advised of his rights.

On the issue of odour detection, Young said in his experience, police using an alleged marijuana smell as reason to search youths in cars or on the street "occurs on a daily basis."

It also gives rise to questions about whether police ever fabricate claims of smelling drugs as an excuse for a fishing expedition. he said.

The appeal court said in Polashek’s case, because police had other grounds besides the smell of marijuana for arresting him, the subsequent search of his car was lawful.

Those reasons included the area and the time of night he was stopped.

"The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer."