Marihuana: Gateway Drug for Invasion of Privacy

October 18, 2015

The myth of marihuana being a “gateway” drug to more dangerous substance abuse has been widely discredited, but the drug remains a danger to members of the public in a much different way. So long as the possession of marihuana is illegal (or even “decriminalized”) it will continue to act as a gateway to the invasion of personal privacy by giving the police a purported justification to search through people’s things.

In Canada, our constitutional right against unreasonable search and seizure protects any of our private places (our bodies, our cars, our homes, our personal computers) from being searched by police on naked suspicion, speculation, or the mere chance that evidence of a crime might be discovered. The law sets out a range of circumstances in which police can lawfully search a private place, which includes when they have reasonable and probable grounds to believe that evidence will be found in the place they intend on searching, and the search of a person’s clothing when they are under arrest.

A police officer might suspect that a young man walking through a bad neighbourhood late at night is up to no good, or that there are drugs hidden somewhere in a fancy car driven by a person who the officer deems shouldn’t be able to afford it, but these circumstances alone do not legally authorize a search. Police officers need something more if they want to do a search and then be able to justify it later in court if evidence is found.  There is no better cure for this little problem than the smell of marihuana.

Before elaborating on that last point, some further explanation of the law is required. Police are allowed to arrest a person who they have reasonable and probable grounds to believe is committing a criminal offence. Once arrested, police are allowed to conduct a search of that person “incident to arrest” to look for evidence and to make sure that the person has no weapons or anything that they might use to escape custody. If the person placed under arrest is the driver of a car, then in many cases the whole car can also be searched for evidence “incident to arrest”.

Marihuana holds the special status of being one of the only kinds of evidence that gives off a strong enough odour that human beings can detect it at some distance. We can’t smell hidden away handguns, stolen money, or hard drugs. Marihuana, on the other hand, gives off an odour which often permeates its packaging (in large enough quantities, of course). It also gives off a rather specific but commonly known odour. It is therefore unique in that a person can be arrested for marihuana possession based on police detecting the odour alone. If the officer can claim to smell un-burnt marihuana coming from the young man stopped on the street, or from the fancy car, he can claim to have reasonable and probable grounds to make an arrest for possession of marihuana. The arrest is then held out as the legal authority for searching the arrested person and the entire car for evidence of the crime of possession of marihuana. In a legal search for marihuana incidental to arrest, evidence of any other crime that the police might discover, such as hard drugs or an illegal weapon, becomes fair game for a further criminal charge and can be introduced as evidence at trial (how things actually shake out at trial is another question -- that's where I come in).

In this way, the marihuana becomes the gateway for an extensive police search of private space in the hopes of finding evidence of further criminal activity. In more extreme cases, an odour of marihuana drifting out from your front door during a visit by police could be used, in part, to justify getting a search warrant for your home. A more sinister approach would be for an officer to go ahead and search a person or vehicle without any legal basis, end up finding marihuana (and maybe evidence of more serious offences), and then later claim that the whole search was actually precipitated by the officer smelling the marihuana!

Most people in this country take little issue with others choosing to smoke marihuana, subject to the same kind of restrictions and consequences we attach to alcohol and tobacco use. Most people also probably don’t think that a person should be arrested for possessing marihuana for personal use, and in principle most police officers are probably of the same mind. But as long as possession of marihuana is illegal it will always be available as a launch point for invading your privacy. This will still be the case if the law is changed to allow police to “ticket” marihuana offences (barely a change at all since they already have the option of giving a person a break). Even under a possible regime of “decriminalization”, marihuana might still be used as a pretext for police searches. Decriminalization would make marihuana possession a non-criminal offence, but it would still be an offence, and the legislation making it a non-criminal offence would have to include some provisions empowering police to search for and seize the drug where an officer believes someone to be in possession of it.

The status quo of lax enforcement against a drug that most people don’t have a problem with is intolerable, as it leaves the door open for police to use the odour of marihuana as a pretext for a wider search, and leaves the populace vulnerable to uneven or abusive exercises of discretion by the police. Giving police a ticketing option won’t remedy this situation, and a new decriminalization regime probably won’t work either. There is only one way to ensure that our fellow citizens are no longer arrested and have their bodies and vehicles and homes searched because of marihuana: legalize marihuana.

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