Thursday, March 5, 2015


From the 1936 Film, directed by Dwain Esper. Credit: Wikipedia. 
I served for many years as a Federal Drug Prosecutor. Now, I defend those accused of drug offences. For me, both jobs are simply different sides of the same coin. Both involve insisting that the law is followed, which in my current job involves holding police officers, prosecutors and the courts accountable for correctly interpreting legislation governing the questioning, search, seizure from and prosecution of my clients for their alleged drug infractions.

I can often mount strong defences where the police enter private homes, or engage in undercover sting operations. The police face a very heavy burden in obtaining a search warrant to enter a private home to look for illegal narcotics. Likewise, police undercover operations rarely target casual drug consumers. However, for those who drive around with illegal narcotics in their cars, the police often have an easy time of detecting, seizing, and laying charges due to the presence of those drugs and the voluntary admissions of vehicle occupants.

Certainly there are still defences that can be mounted to vehicle-based questioning, search and seizure, but you need to understand that there is a greatly lessened expectation of privacy in a vehicle as compared to a home, or even a person's clothing and belongings when walking down a street. Police have broad powers for stopping vehicles for public safety purposes, broad powers of questioning drivers, can observe what is in plain view in a vehicle, and can then conduct warrantless searches incident to arrest if something illegal is observed in plain view or vehicle occupants admit to illegality.

When legitimately stopped for speeding a bit over the limit, many of my clients truthfully answer what they believe to be the innocuous police questions: "do you have any drugs with you?" or the even more general "do you have anything on you or in the car that you shouldn't have?" They naively think that by being honest, and coughing up "the goods," the police will simply seize the items, and send them on their way. Especially if the goods only amount to small amounts of marihuana.

While this assumption might be correct in a large urban area (and it is still a very, very risky assumption to make), it is completely incorrect on Canada's highways like Ontario's busy 401 route between Toronto and Montreal where I often assist clients in Alexandria, Cornwall, Morriburg, or Brockville.

Not only will the police seize your drugs and charge you. They'll do a complete search of the rest of your car and possibly even charge you for possession for the purposes of trafficking if they don't like the total weight of drugs they find. Worst of all, they'll charge all the passengers in your car, even if those people don't own the vehicle, and don't have any drugs on them personally.

I don't moralize to my clients. We all make life choices on how to behave. My job is to assist my clients in complying with the law, and in obtaining the fairest possible treatment if accused of non-compliance.

What my readers here need to understand is that you take a huge risk by carrying even tiny amounts of recreational narcotics in your vehicles (be they in a shirt pocket, a glove compartment, or a suitcase). Even if you don't speed, you still run the risk of getting stopped by police for some other reason. And the police are well training at detecting drugs in cars. This is a risk you don't face if you simply keep your drugs at home, or carry them around as a pedestrian.

Lastly, if you're stopped by the police, you and your passenger may have a duty to identify yourselves, and you might have to produce driving related documentation to the police. However, while you should never lie to the police, you also have the right to remain silent in response to police questioning about the presence of drugs. If the police don't see or smell any drugs, any subsequent search of your vehicle may very well be illegal - and I may be able to get any charges thrown out of court - but only if you didn't give them grounds to search by admitting drugs are present.

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