Refer to my last comments. I have no desire to have unproductive chit chat. You win a bucketful of crap.....
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Searched & arrested
- Thread starter Prince-ALI
- Start date
Refer to my last comments. I have no desire to have unproductive chit chat. You win a bucketful of crap.....
Why do so many people get this wrong?
If they see or smell it during a traffic stop they have probable cause for a more thorough search. If they spot other evidence of other contraband such as open alcohol or even empty alcohol containers in the vehicle, or a radar detector or what they reasonably believe to be the wiring for a radar detector, they can also conduct a more through search of the vehicle.
And when they are conducting a legal search for one thing, ANYTHING else they also happen to find is also admissible as evidence in what charges are applicable to that other contraband.
As far as personal searches go, even without contraband visible in plain sight or with a noticeable odour, there are still other ways in which the HTA authorizes a cop to search vehicle AND a driver's or rider's person and clothing.
A number of HTA offences are arrestable offences, such as careless driving, racing/stunting. Even passengers charged with seatbelt offences can be arrested in some circumstances. http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h08_e.htm#BK352
Once a driver/rider or vehicle occupant is arrested for an arrestable HTA offence, a vehicle can be impounded, and part of the impound process includes a warrantless search to obtain a full inventory of the vehicle contents prior to impoundment. The higher courts have upheld the admissibility of evidence found during such warrantless vehicle inventory searches.
If a rider or driver or passenger is arrested for one of these arrestable HTA offences, then too a full warrantless body search is permitted as part of the process of taking the arrested person into custody. Again, even if the person is subsequently released roadside, the higher courts have upheld the admissibility of evidence found during such searches that are incident to an arrest for an arrestable HTA offence.
And in case anyone here fails to see the connection, the OP was charged with careless driving which is an arrestable offence according to the HTA, and which then supports a warrantless search of person and vehicle incident to arrest.
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....and thats advice from a cop
SlowNLow
Banned
Sorry, I'm a lawyer too.... Now alllllll I say is objective, right Jackie?
Sent from my GT-I9000 using Tapatalk
yamahar1
Active member
Thats my comment you are quoting. If you read my other posts, I CLEARLY said that they CAN search you and "reasonable grounds" for such search is met if they smell this, or if other contraband is found. Perhaps read all of what I said, before saying that.
So here is my question.....You are telling me that any officer has the right to search a person they stop for a regular traffic violation? YES I agree there are situations under the HTA that warrant a person "arrestable", but you have to agree with me that this person would NOT have met that criteria because he simply went around the unmarked officer? Please tell me what situations under the HTA that WOULD warrant a search by the officer without consent or warrant? I think you are only going to be able to describe VERY remote situations if any.
yamahar1
Active member
if you are a Police Officer (?), then please answer me this as well.........how many "careless driving" charges have you laid over you career, and how many of those charges did you do a "warrant-less search" on? It is NOT common practice to conduct searches of persons or vehicles in this situation, and I hope you agree with me in this sense.
Want an example??? The last court case I was a part of, the defendant was charged by Kawartha Lakes OPP for impaired driving, and his defense was that there were not proper grounds for his stop. He WON his case on this ground, and the evidence of what was found in his car (yet another Criminal Charge) was not able to be used for a conviction.
Want an example??? The last court case I was a part of, the defendant was charged by Kawartha Lakes OPP for impaired driving, and his defense was that there were not proper grounds for his stop. He WON his case on this ground, and the evidence of what was found in his car (yet another Criminal Charge) was not able to be used for a conviction.
I'm not disputing this. I'm saying that in other circumstances, they don't need what you call "reasonable grounds" to justify a search. Those additional circumstances include situations where operator or occupant of vehicles is in violation of an arrestable HTA offence.
Given that you were not there, can you say with complete certainty that the OP did not make his pass in a careless manner?
The OP himself admits that the pass was done in excess of the 40 kmph speed limit. How much in excess? What other aspects of the pass might cause a cop to think it was done in a careless manner?
If any aspect of the pass even remotely constituted careless driving or any other arrestable HTA offence in the eyes of the cop, then the cop had grounds to stop and arrest the driver for such, and that opens the door for a search of his person and vehicle without warrant. When it comes time for court, the careless charge may or may not result in conviction, but in the meantime the statutory requirements to justify a search have already been met.
Even a not guilty verdict on the careless driving charge will not invalidate the admissibility of the evidence found during the search. For that to happen, the OP would have to convince the judge that the careless charge was completely bogus and thus was little more than a pretext to provide cover for the search. However, that's a seriously-high hurdle for the OP to meet and even then the judge could allow the evidence anyways. Besides, the OP's own description of the pass suggests that it was more than a "gentle" pass.
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Ask a cop, not me. Also, do a search of CANLII. Conducting searches in such circumstances appears to be more common than you might think.
Given that police are empowered by the HTA to stop cars at random for purposes of documentation and sobriety checks, and given that the Supreme Court of Canada had upheld the practice as being constitutionally acceptable, that defendant was extremely lucky. Look up R. v. Ladouceur for the details.
TorontoBoy
Well-known member
There are many more readers here that value your contribution, but they do not post to defend you. I encourage you and others to continue to speak your mind. Unfortunately this forum does sometimes try to crucify people who contribute. This is one of the negatives of this forum group, and I am unsure why this occurs with regular frequency. Stick around for lots of good stuff on motorcycles but when you post comments wear a teflon suit.
Given all this information about cops being able to make up reasonable grounds by saying they smell pot, I still don't see any downside to not giving them consent. If you don't give them consent they may or may not search you right? So what's the downside really?
Perhaps someone (Turbo, or another cop, lol) could enlighten me here. Let's say the OP did not give the cop consent to search him and of course the cop then went ahead and searched. He doesn't find pot, but a gram of coke. You're saying the OP would then have been charged with the coke and a judge would uphold the charge, even though the "probable" cause actually pointed towards pot and not coke. If that's the case then does a cop really have anything to lose by just saying they smell pot and searching someone. It's really a catch 22, cop searches and finds nothing, then nothing done. But if the cop does find something, then he gets to have another ticket or whatever go towards him and isn't that good for the cops review's?
Perhaps someone (Turbo, or another cop, lol) could enlighten me here. Let's say the OP did not give the cop consent to search him and of course the cop then went ahead and searched. He doesn't find pot, but a gram of coke. You're saying the OP would then have been charged with the coke and a judge would uphold the charge, even though the "probable" cause actually pointed towards pot and not coke. If that's the case then does a cop really have anything to lose by just saying they smell pot and searching someone. It's really a catch 22, cop searches and finds nothing, then nothing done. But if the cop does find something, then he gets to have another ticket or whatever go towards him and isn't that good for the cops review's?
Thanks TorontoBoy, Its sad when a problem becomes high-jacked and the poster does not get the resolve he seeks. In my 13 yrs of practice, i have had the privilege to win some and loose some yet to this day, regardless of the powers the police seemingly have, The courts continue to dismiss or overturn decisions made by other judges because in reality most peoples rights are infringed on. Peeps simple do not understand their rights or the other rights that protect them over laws made by their very own government. They simply toe the line because of the seemingly huge legal cost involved. I recently had a woman being evicted for non-payment of rent and i got a judge to agree to retry the case on the VERY DAY she was to be evicted. Thankfully she won and her kids need not be in the street. I hear you and will continue to post my 2 cents worth. Thank u
Interesting observation. My tack on this will be to query the kind of training the police have to be able to smell pot. (Yes..Yes.. I know most do not need training to smell pot) but in defending someones freedom, One must reach sometimes the point of absurdity. To insinuate that the cops word is golden is completely puppy c.ck. The law courts do not belong to the government, It belongs to the people so they are able to challenge the laws of the state and the presumption of fellow citizens.
On "absurdity": It seems to me that you're right, on that point. Especially so when an officer claims one thing, as probable cause, but finds something that couldn't possibly meet that probable cause. It would tend to count against an officer's credibility, I would think. One thing that people forget, far too often, is that you aren't required to prove your innocence. They must prove your guilt, so calling testimony into question may be enough.
Holmes
Well-known member
People are still getting charged for weed? This is rediculous, cigarettes and alcohol are leathal... cannabis... not at all! But ya never ever admit to anything, I dont say more then my name, DoB and address to a pig... ever. **** you coulda got them for unlawful search! Possession charges get dropped all the time, hell I just got off an assault charge yesterday, get a lawyer bro.
you can try this out, but at the ontario police college cadets are exposed to burnt and unburnt marijuana for this exact reason. defence lawyers have tried this so they get the training in order to say they have training in it
In this case it probably wouldn't matter if they smelled it or not. The OP was being charged with careless driving which is an arrestable HTA offence. The police do not need to have a warrant to search a person already under arrest, even if the arrest was for just an arrestable HTA offence. Anything found would be valid grounds for additional charges as applicable, and would be admissible as evidence in support of those additional charges.
Prince-ALI
Member
Interesting, didn't know the careless was an ARRESTABLE offence--at least not in the manner I acted. What a world we live in.
Careless driving falls under HTA 130. Be happy they didn't impound the vehicle at the same time. They could have.
You are lucky we don't live in the U.S. Over there, if they find a computer, tablet or smartphone while arresting you for not wearing your seatbelt, you are required by law to give up any access passwords they need to rifle through your device. For now, they can't pull that **** off in Canada, but I think that'll change very soon.
100% not true.
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