Knock, Knock, Sniff, Sniff

If the police are at your door, does a suspicious marijuana smell give them the right to enter?

Back in 1992, Crime Stoppers received a tip about a house that reeked of pot when the front door was opened. The RCMP tried to gather enough information using conventional and legal means to obtain a search warrant. They failed. Doubtlessly frustrated, two RCMP officers decided to knock on the front door to check for a questionable contraband smell. Sure enough, when the door opened, the aroma of growing weed blossomed around them. I don’t know if they smiled, but like to imagine they did.

The owner was promptly arrested, and the officers entered the house to secure the premises. A search warrant was obtained partly on the basis of the smell, and a total of 41 marijuana plants were found in the basement. Other drug-related paraphernalia and growing equipment were also seized.

By the time this case reached the Supreme Court of Canada, the question was essentially this: was the police knock-and-sniff at the door a “search” within the meaning of Section 8 of the Canadian Charter of Rights and Freedoms (i.e., the right to be secure against unreasonable search and seizure)? If so, was it an unreasonable search? Not only that, but was the second search, completed on the basis of a warrant, also a violation of the occupant’s rights under Section 8, and must the evidence obtained subsequently be excluded at trial?

The short answer to all of these questions was yes. The slightly longer answer is that the police violated the accused’s reasonable expectation of privacy.

In the words of former Supreme Court Justice John Sopinka, a reasonable expectation of privacy protects a biological core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.

However, this right to privacy is not unlimited. For example, while there is a reasonable expectation of privacy in one’s dwelling place, it decreases as the space becomes more public. It is a flexible standard that requires a fairly detailed contextual analysis before one can readily say what it is.

My reasonable expectation of privacy when urinating on a tree is pretty modest; while standing in a stall at Rexall Place it’s greater; and while sitting on my own toilet in the locked bathroom of my own house, crisp newspaper in hand, it’s pretty high.

Context is important. Yes, the combination of a front door with an unobstructed walkway creates an implied licence to approach and knock for a lawful purpose, but nothing more. If the police knock, sans warrant, with the intention of gathering evidence against the occupant, then the occupant’s reasonable expectation of privacy is violated, and the protections against unreasonable search and seizure in the Charter are triggered. You may have a simple one-word answer for them: goodbye. Just be polite about it.

Fine, you say, but in this case, wasn’t a search warrant subsequently granted? Yes, but partly because of information obtained through an illegal, warrantless search. The warrant the police eventually got was based on the bad knock-and-sniff search, and so the evidence gained through the search warrant was also tainted by the original breach.

One’s rights, once violated, cannot be unviolated just as a bell, once struck, cannot be unrung. As a result, upon application, any evidence subsequently discovered may be excluded.

And if there is no evidence, there can be no conviction. Enough said.

– Article from SEE Magazine on April 9, 2009.