April 23, 2014 

Olivia Khazam
McGill University

Table of Contents

1. Introduction
2. The Plain Smell Doctrine in the United States
3. The Plain Smell Doctrine in Canada
4. Concerns about the Plain Smell Doctrine and the “Hierarchy of the Senses”
4.1. The Hierarchy of the Senses
4.2. Distrust of the Sense of Smell
5. Should Canada Adopt the Plain Smell Doctrine?
6. Conclusion
Notes

1. Introduction

The plain view doctrine has been accepted in both the United States and Canada as an exception to the rule that requires police officers to obtain a search warrant prior to conducting a search. {1} It permits a police officer to seize an item that is within his or her sight without a warrant, provided that the officer is legally in a position to see it and the item is immediately recognizable as contraband or evidence subject to seizure. {2} Various American courts have attempted to extend the plain view doctrine to situations involving senses other than sight; however, it is unclear to what extent objects that cannot be seen can be considered as being in plain view if they can be otherwise sensed. {3} The corollary of “plain view,” the plain smell doctrine, refers to the situation in which an officer makes a determination of reasonable and probable grounds for a search based solely on his detection of some distinctive odour. {4}

This paper will first discuss the adoption of the plain smell doctrine in the United States and examine the state of the law in Canada. It will then explore the concerns driving a reluctance to adopt the doctrine in Canadian law and assess the extent to which they echo the beliefs underlying the traditional “hierarchy of the senses.” Finally, it will consider whether Canadian courts ought to extend the plain view doctrine to include “plain smell.”

2. The Plain Smell Doctrine in the United States

The United States Supreme Court has accepted the validity of the plain view doctrine since 1971; however, it has only rarely considered the applicability of the doctrine to situations in which police officers “use one of their other […] senses to discover contraband.” {5} In United States v Johns, Justice O’Connor of the Supreme Court mentioned the plain smell doctrine and referred to United States v Haley, in which the Fourth Circuit held that “plain smell” may justify a warrantless search of a container. {6} However, in Johns, the search was upheld on other grounds and Justice O’Connor’s comments regarding the plain smell doctrine are considered non-binding obiter dicta. {7} The Supreme Court again referred to the plain smell doctrine in 2013 in Florida v Jardines. {8} While the Court tangentially acknowledged the existence of the doctrine, it did not address its validity. {9}

Absent a definitive statement from the Supreme Court, and despite the “virtually unanimous acceptance” of the doctrine among the federal circuits, state courts are “free to accept or reject plain smell as they please.” {10} Several states have failed to articulate a clear position on the plain smell doctrine, leaving courts in these jurisdictions to “simply choose to follow the precedent that most conveniently matches” their own views. {11} Furthermore, while a number of jurisdictions have expressly rejected the plain smell doctrine, the majority have adopted it. {12} The result has been a “disturbing lack of uniformity” within certain states and across state lines. {13}

When “plain smell” first appeared in American jurisprudence in the 1970s, it was one of a number of factors used to establish probable cause for a search based on the “totality of the circumstances.” {14} In United States v McCormick and United States v Anderson, the Tenth Circuit Court of Appeals held that the “plain smell” of marijuana, in combination with other suspicious facts, amounted to probable cause. {15} In McCormick, the Court held that a border patrol agent had probable cause to conduct a warrantless search of a van based on his detection of the odour of marijuana, the driver’s suspicious behaviour, his prior plain view of a large plastic-covered object inside the van, and another agent’s description of the object that he felt under the plastic cover. {16} Similarly, in Anderson, the Court held that the “plain smell” of marijuana combined with the “plain view” of an expended marijuana cigarette in the ashtray amounted to probable cause for a search of the defendant’s vehicle. {17}

Two years later, in United States v Martinez-Miramontes and United States v Curran, the Ninth Circuit went beyond the “totality of the circumstances” approach and held that “plain smell,” by itself, could amount to probable cause for a search. {18} These were the first cases in which the Court relied solely on “plain smell” as a justification of probable cause. {19} In Martinez-Miramontes, the appellant and another individual had run out of gas on the highway and approached a border patrol agent who had noticed their parked vehicle and stopped his own. {20} While the two individuals were talking to the border patrol agent, a customs agent, who had also stopped at the scene, approached the appellant’s vehicle and “sniffed the crevice where the trunk closes and detected an odor of marijuana coming from it.” {21} The border patrol agent then began a search and seized a large amount of marijuana that was inside the trunk. {22} The Court upheld the search, stating that it found “no distinction of substance between leaning down and turning the head to look inside a motor vehicle to see articles which then come within the ‘plain view’ doctrine […] and leaning down and sniffing to detect the odor of marijuana.” (23}

Although the Supreme Court has yet to explicitly extend the plain view doctrine to include the sense of smell, the plain smell doctrine has been upheld by several different Courts of Appeals since the 1974 decision in Martinez-Miramontes. {24} The groundwork for the Supreme Court to decisively adopt the plain smell doctrine has thus been “sufficiently laid” for over two decades. {25}

3. The Plain Smell Doctrine in Canada

In Canada, although smell can ground the issuance of a search warrant, {26} the plain smell doctrine is treated cautiously. Canadian courts, unlike their American counterparts, have held that “plain smell,” in itself, does not amount to reasonable and probable grounds for a search.

In R v Smith, the appellant gave a police officer permission to enter his home to attend to an individual who had called 911. {27} The officer entered the house and immediately detected the smell of damp marijuana, which intensified near the door to the basement. The officer believed that there was a marijuana growing operation in the basement. He went into the basement and discovered a marijuana farm. He then left the residence, obtained a search warrant, and returned to seize the marijuana. The trial judge reasoned that the plain view doctrine also applies to a case of “plain smell” and concluded that the search was lawful. {28} The Court of Appeal of Alberta reversed the trial judge’s decision and held that “[i]f an unique smell causes an officer to believe that drugs are present in another part of a private dwelling, absent consent, a search warrant will be required to find those items.” {29} In L’Espérance v R, the Court of Appeal of Quebec relied on Smith and held that “a police officer who finds himself lawfully in a residence and perceives a characteristic odour of drugs from another room may not carry out a search without a warrant on the basis of the ‘plain view’ doctrine.” {30}

The Canadian approach to “plain smell” instead resembles the “totality of the circumstances” approach used by the American courts in McCormick and Anderson. {31} In Smith, Justice Conrad accepted that “smell may support a search of a location […] where a warrantless search is not prima facie unreasonable” but felt that she did not need to decide the issue. {32} In R v Polashek, a police officer stopped the appellant for a traffic violation and detected a strong smell of marijuana emanating from the vehicle. {33} When he told the appellant that he smelled marijuana, the appellant looked to his right and then over both shoulders to the rear of the vehicle and said, “No, you don’t.” {34} A subsequent search revealed bags of marijuana, a scale, and rolling tobacco in the trunk of the car. {35} Although Polashek involved the legality of a search incidental to an arrest, the Ontario Court of Appeal nonetheless considered that it raised the issue of the plain smell doctrine. {36} The Court adopted the “totality of the circumstances” approach and held that the smell, the appellant’s response to the officer’s statement, the area of the city where the appellant was stopped, and the time of night together amounted to reasonable and probable grounds:
Had Constable Ross based his arrest of the appellant solely on the presence of the odour I would have held that there were not reasonable and probable grounds to make the arrest. […] However, Constable Ross did not make his arrest solely on the basis of the odour of marijuana. He testified that a combination of circumstances gave him the grounds to make the arrest. {37}

In R c Genest, the Cour du Québec reviewed the limited Canadian jurisprudence on the plain smell doctrine, including the aforementioned decisions, and summarized the state of law:
En général, il semble se dégager de ces arrêts que la question de savoir si l’odeur de marijuana est suffisante pour fonder une arrestation ou une fouille dépendra à chaque fois de l’ensemble des circonstances. {38}

4. Concerns about the Plain Smell Doctrine and the “Hierarchy of the Senses”

The concerns regarding the sense of smell that motivate Canada’s reluctance to adopt the plain smell doctrine largely reflect the traditional “hierarchy of the senses.”

4.1. The Hierarchy of the Senses
Since Ancient Greece, western society has ranked the five senses – sight, hearing, touch, taste, and smell – according to their “perceived epistemological importance.” {39} Greek philosophers privileged sight and hearing over touch, taste, and smell because sight and hearing were thought to provide the best objective information about the world; they operate at a distance from the sources of sight and sound, thereby “protecting the perceiver and allowing for a greater measure of objective appreciation.” {40} Touch, taste, and smell, on the other hand, require contact with or proximity to the source of the sensory experience, and this proximity was thought to generate “not just physical but moral danger” as it “imped[ed] the transcendence of the body’s corporeality and [thus] the possibility of objective philosophical inquiry.” {41} Perception has been further divided into masculine and feminine territories; while men are thought to have mastery of the “higher” senses of sight and hearing, women are linked with the “lower” senses of touch, taste and smell. {42} The lower senses, therefore, are associated with the traditionally feminine qualities of irrationality, subjectivity, and emotion, and are thought to require regulation and containment. {43}

This hierarchy is socially-constructed. The higher senses are not inherently superior, nor are the “lower” senses inherently inferior; our profound distrust of the lower senses is a product of their particular historical and cultural development. {44} Smell “has been marginalized because it is felt to threaten the abstract and impersonal regime of modernity by virtue of its radical interiority, its boundary-transgressing propensities and its emotional potency.” {45} It “ranks low in the hierarchy of the senses,” which has left a distinct impression on many aspects of the law. {46}

4.2. Distrust of the Sense of Smell
The most frequently cited reasons for rejecting the plain smell doctrine involve a trial of the sense of smell itself. {47} In particular, courts have expressed concerns that the sense of smell is unreliable, subjective, and open to abuse. These concerns derive from the socially-constructed hierarchy of the senses and the resulting associations of sight and hearing with the objective and the rational and of the lower senses, such as smell, with the subjective and irrational.

One of the principal arguments for rejecting a “plain smell” corollary to the plain view doctrine is that the sense of smell is unreliable. Courts that have rejected the plain smell doctrine on this basis have tended to focus on the difficulty in determining the amount of time that an odour has been present, the mobility of odours, and the inability to immediately trace the odour to a specific source. {48} In People v Hilber, the Supreme Court of Michigan accepted that many people can recognize certain distinctive odours, including burning and unburned marijuana, without special training, and even accepted that many people can recognize the residual odour of burned marijuana. However, the Court emphasized that it is “beyond ordinary experience to be able to determine with reasonable accuracy the length of time a persistent [odour] has lingered.” {49} In State v Jones, the Court of Appeals for Ohio noted that odours may be “carried by the movement of air to locations where the object which originally created the odor was never present.” {50} In People v Taylor, the same court held that the odour of marijuana alone is insufficient to sustain a finding of probable cause and suggested that smell is less reliable than sight and touch: {51}

With the sense of smell, even more caution is required than with the senses of sight and touch. When an officer sees or feels contraband, he knows it is present and he can tell who has possession of that contraband. The same is not true with the sense of smell. The smell of smoke, whether from tobacco or from marijuana, can linger and can attach to someone coming into a vehicle, regardless of whether that person ever had possession of it, or whether it was smoked in that vehicle. {52}
Courts tend to distrust the sense of smell, believing that “[e]ven a most acute sense of smell might mislead officers into fruitless invasions of privacy where no contraband is found.” {53}

North American courts have sometimes rejected the plain smell doctrine on the basis that the sense of smell is “subjective.” In Hilber, the Court distinguished between smell and the “higher” senses on the basis that sight and hearing can be tested and people are provided with correctional aids, whereas “there is no standard or norm for the sense of smell.” {54} Furthermore, again in contrast with sight and hearing, the Court found that the sense of smell adapts to odours such that one person’s perception may “differ significantly” from another’s. {55} In Polashek, the Ontario Court of Appeal stated that, because the sense of smell is “highly subjective” and “largely incapable of objective verification,” to authorize a search or an arrest solely on that basis “puts an unreviewable discretion in the hands of the officer.” {56}

Some commentators have cited a related concern that the sense of smell and thus the plain smell doctrine are open to abuse. Michael Getty has suggested that the plain smell rule creates two opportunities for abuse because of its “wholly subjective” standard: first, an officer acting on a hunch, or out of spite, may use the doctrine as a pretext for otherwise illegal searches and, second, an officer who has conducted a warrantless search may suddenly “remember” that he or she smelled marijuana prior to the search in order to justify it. {57} A number of courts appear to agree. In Jones, the Court held that “claims of suspicious odors are ephemeral, and thus are more easily manufactured than claims of contraband in plain sight.” {58} In People v Argenian, the Appellate Court of Illinois suggested that the plain smell doctrine gives police officers an “unlimited license” to search any vehicle based “merely on his uncorroborated testimony,” which “could conveniently be used to justify any search […] whether or not the officer was […] honestly mistaken or actually lying.” {59} In Polashek, Justice Rosenberg was concerned about a different kind of abuse: citing Justice Doherty in R v Simpson, {60} he stated that “subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic origin or sexual orientation.” {61}

These concerns thus reflect a historical, socially-constructed, and profound distrust of the lower senses; the remaining question is whether they are, in themselves, justifications for rejecting the plain smell doctrine outright. {62}

5. Should Canada Adopt the Plain Smell Doctrine?

The concerns that the sense of smell is unreliable, subjective, and open to abuse are not, in themselves, compelling reasons for rejecting the plain smell doctrine outright.

The unreliability of the sense of smell is a legitimate concern, regardless of whether it reflects a socially-constructed hierarchy. However, the transitory nature and mobility of odours and the difficulty of immediately tracing the odour to an identifiable source are not grounds for rejecting the plain smell doctrine outright, but instead for limiting the application of the doctrine to appropriate circumstances. {63} These challenges merely suggest “that an officer cannot be one hundred percent certain that contraband is present,” but it does not follow that an officer cannot reasonably believe from his or her detection of the odour that it is likely that contraband is present. {64} The American courts have limited the applicability of the plain smell doctrine in order to reduce the risk of “fruitless invasions of privacy” that may result from the unreliability of the sense of smell. {65} Firstly, the odour must be immediately recognized by the officer as contraband in order for the plain smell doctrine to apply, and the officer must demonstrate his or her prior knowledge of the smell. {66} Secondly, some courts have drawn a distinction between the smell of fresh marijuana and that of burned marijuana; the plain smell doctrine would only apply where an officer detects fresh marijuana because the contraband is more likely to be present in the location than if the officer detected burned marijuana. {67} Thirdly, some courts have suggested that the doctrine should be limited to authorizing a search of a confined space, such as a vehicle, to facilitate the identification of a precise source of the smell. {68} Because the “probable cause” and “reasonable and probable grounds” standards do not require absolute certainty, {69} the unreliability of the sense of smell does not justify rejecting the plain smell doctrine, but rather requires the delineation of a clear test for its application.

The argument for rejecting the plain smell doctrine based on the subjectivity of the sense of smell is based on a false dichotomy between the subjective, on the one hand, and the rational and empirically verifiable, on the other. The hierarchy of the senses depends on this dichotomy, but it is flawed to the extent that it precludes the possibility of rational conclusions based on personal experiences. The perception of smell indeed consists of not only the sensation of the odours themselves, but also of “the experiences and emotions associated with them”; {70} however, this does not prevent a reasoned conclusion from being drawn from olfactory information. For a smell to create reasonable and probable grounds for a search, it must be “reasonable to believe that evidence or contraband will be found where the smell is coming from.” {71} The belief will be reasonable where an officer is able to recall an odour that he or she previously smelled and is able to distinguish that odour from others. {72} The “personal” or “subjective” nature of smells has no bearing on the reasonableness of the officer’s belief. Furthermore, the sense of smell is “highly resistant to decay.” {73} Studies have shown that memory for odours is “less influenced by the passage of time than are auditory and visual memories”; if a person were familiar with a particularly distinct odour, the accuracy of their detection of that odour by memory might approach one hundred percent and remain close to that level, unaffected by the passage of time. {74} The idea that smell’s “subjectivity” renders it inferior to sight and hearing flows directly from the socially-constructed hierarchy; however, “because neither experimental data nor common experience suggests a hierarchy of the senses, the courts should not take rigid positions” to the effect that one sense is somehow less appropriate than another for identifying contraband. {75}

With respect to the plain smell doctrine’s potential for abuse, the argument must be that the sense of smell is somehow more susceptible of being used exploitatively than the other senses. This reasoning is a pure manifestation of the distrust of the lower senses embedded in the hierarchy; historically, certain odours were believed to have malevolent and corrupting influences due to their association with feminine bodily functions. {76} Michael Getty grounds his argument in “[a]bundant scholarly commentary” that shows that police officers “will ‘twist’ facts and will out and out lie at suppression hearings to avoid suppression of evidence.” {77} However, proponents of this argument fail to show why the risk of abuse is greater for the plain smell doctrine than it is for “plain view” or for any other rule of evidence. This uncorroborated distrust of the sense of smell is not a compelling reason for rejecting the plain smell doctrine.
While these concerns about the sense of smell are not, in themselves, compelling reasons for rejecting the plain smell doctrine, Canadian courts are right to proceed cautiously.

First, any analogy between “plain view” and “plain smell” must be undertaken with care. {78} The Court of Appeal of Alberta has held that the plain view doctrine applies to justify a seizure where the police are lawfully present in a location, but it does not, in itself, justify a search. {79} When the plain view doctrine applies, the item to be seized is immediately present and no further searching is required. {80} However, the sense of smell “establishes the possible presence of contraband, the confirmation of which requires further searching.” {81} Therefore, it may not be possible for Canadian courts to adopt the plain smell doctrine as a direct extension of the plain view doctrine to the sense of smell. It would likely be necessary to consider whether the operation of “plain view” and “plain smell” are sufficiently analogous.

Second, one of the strongest arguments for adopting the plain smell doctrine in the United States is not applicable in Canada. The United States Supreme Court has accepted a limited “plain feel” corollary to the plain view doctrine. {82} American proponents of the plain smell doctrine argue that “the sense of smell is at least as reliable as the sense of touch in determining whether contraband is present, and should therefore be accorded equal status to touch within the plain view doctrine.” {83} In R v Mann, a police officer detained an individual who matched the description of a suspect in a reported break and enter. {84} The individual complied with a pat-down search of his person for concealed weapons. During the search, the officer felt a soft object in a pocket. He reached into the pocket and found a small plastic bag containing marijuana. {85} The Supreme Court of Canada held that, while the initial pat-down search for protective purposes was justified, the subsequent search of the appellant’s pocket was “problematic” and the seizure of the marijuana was unlawful. {86} Canadian courts have yet to apply the plain view doctrine to a situation in which a police officer discovers contraband through the sense of touch. Therefore, while the argument that “plain smell” should have the same status as “plain feel” succeeds in the United States, it has no application in Canada.

6. Conclusion

The “plain smell” jurisprudence in both the United States and Canada has put the sense of smell on trial. While American jurisdictions have tended to adopt the plain smell doctrine, Canadian courts have been reluctant to follow suit. However, the most frequently cited concerns regarding “plain smell” reflect the traditional, culturally-constructed hierarchy of the senses and do not justify an outright rejection of the doctrine. The plain smell doctrine is “a doctrine of common sense”; police officers cannot reasonably be expected to avert their senses from evidence of criminal activity that could be observed by any vigilant member of the public. {87} Still, Canadian courts are right to proceed cautiously. The plain smell doctrine is not a direct extension of the plain view doctrine to the sense of smell, and its adoption would require the formulation of a clear test for its applicability.
 
Olivia is a fourth-year law student in the BCL/LLB program at McGill University’s Faculty of Law. She holds a Bachelor of Commerce with concentrations in Finance and International Business from McGill University.

Notes

1. Coolidge v New Hampshire, 403 US 443 at 465 (1971); see e.g. R v Buhay, 2003 SCC 30, [2003] 1 SCR 631; R v Rao (1984), 46 OR (2d) 80; 9 DLR (4th) 542 (CA); R v Belnavis (1996), 29 OR (3d) 321 at 338; 107 CCC (3d) 195 (CA) (“[t]he plain view doctrine as developed in the United States and accepted by various Canadian courts justifies warrantless seizures in limited circumstances”).
2. R v Belliveau and Losier (1986), 75 NBR (2d) 18, 30 CCC (3d) 163 at 173 (CA); Valerie Bell, Craig Hemmens & Nichole Gerhard, “Getting Touchy-Feely: Application of the Plain View Doctrine to Plain Touch, Plain Smell, and Plain Hearing Situations by the United States Courts of Appeal and District Courts” (2010) 23:1 Criminal Justice Studies 3 at 4.
3. Ibid at 3; David Howes & Constance Classen, Ways of Sensing: Understanding the Senses in Society (London: Routledge, 2014) at 109.
4. Michael A Sprow, “Wake Up and Smell the Contraband: Why Courts that Do Not Find Probable Cause Based on Odor Alone are Wrong”, Note, (2004) 42 Wm & Mary L Rev 289 at 291, n 17.
5. Ibid at 293; Bell, Hemmens & Gerhard, supra note 2 at 6.
6. United States v Haley, 669 F 2d 201 at 203-04 (1982); United States v Johns, 469 US 478 at 486 (1985) [Johns].
7. Ibid at 486-87; Bell, Hemmens & Gerhard, supra note 2 at 6.
8. Florida v Jardines, 133 S Ct 1409 (2013) (the issue was whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home constituted a “search” within the meaning of the Fourth Amendment).
9. Ibid at 1418.
10. Sprow, supra note 4 at 297, 317.
11. Ibid at 298-99.
12. Ibid at 300.
13. Ibid at 299-300.
14. Bell, Hemmens & Gerhard, supra note 2 at 9.
15. Ibid at 10.
16. United States v McCormick, 468 F 2d 68 at 74 (1972) [McCormick].
17. United States v Anderson, 468 F 2d 1280 at 1282-83 (1972) [Anderson].
18. United States v Martinez-Miramontes, 494 F 2d 808 at 809 (1974) [Martinez-Miramontes]; United States v Curran, 498 F 2d 30 (1974); Bell, Hemmens & Gerhard, supra note 2 at 10.
19. Ibid at 11.
20. Martinez-Miramontes, supra note 18 at 809.
21. Ibid.
22. Ibid at 810.
23. Ibid.
24. Bell, Hemmens & Gerhard, supra note 2 at 11; Sprow, supra note 4 at 293.
25. Ibid at 296.
26. See e.g. R v Provost, 2012 QCCQ 877 at para 44 (available on WL Can).
27. R v Smith, 1998 ABCA 418 at para 2, 161 DLR (4th) 331 [Smith].
28. Ibid at para 4.
29. Ibid at para 24.
30. L’Espérance v R, 2011 QCCA 237 at para 41 (available on WL Can), citing Smith, supra note 27 at para 24 [emphasis added].
31. For further discussion of the American “totality of the circumstances” approach, see text accompanying note 14.
32. Smith, supra note 27 at para 23.
33. R v Polashek (1999), 45 OR (3d) 434 at 437, 172 DLR (4th) 350 (CA), Rosenberg JA [Polashek].
34. Ibid.
35. Ibid at 438.
36. Ibid at 437; accord R v Schulz, 2001 BCCA 601, 159 BCAC 146; R v Duong, 2002 BCCA 43, 162 CCC (3d) 242 (whether the smell of marijuana is enough for a lawful arrest or detention also depends on the circumstances).
37. Polashek, supra note 33 at 440.
38. R c Genest, [2004] RJQ 2843 at 2848 (available on Azimut) (CQ) (this passage was cited with approval in Marin c R, 2012 QCCA 254 at para 34 (available on WL Can)).
39. Christopher J Buccafusco, “On the Legal Consquences of Sauces: Should Thomas Keller’s Recipes be Per Se Copyrightable?” (2007) 24 Cardozo Arts & Ent LJ 1121 at 1140 [Buccafusco, “Sauces”]; see especially Anthony Synnott, “Puzzling over the Senses: From Plato to Marx” in David Howes, ed, The Varieties of Sensory Experience: A Sourcebook in the Anthropology of the Senses (Toronto: University of Toronto Press, 1991) 61.
40. J Austin Broussard, “An Intellectual Property Food Fight: Why Copyright Law Should Embrace Culinary Innovation” (2008) 10 Vanderbilt Journal of Entertainment & Technology Law 691 at 720; Buccafusco, “Sauces”, supra note 39 at 1141.
41. Ibid; Broussard, supra note 40 at 720.
42. Constance Classen, “The Witch’s Senses: Sensory Ideologies and Transgressive Femininities from the Renaissance to Modernity” in David Howes, ed, Empire of the Senses: The Sensual Cultural Reader (Oxford: Berg, 2005) 70 at 70.
43. Ibid at 75ff.
44. C.f. Christopher Buccafusco, “Making Sense of Intellectual Property Law” (2012) 97 Cornell L Rev 501 at 531ff (on challenging the sensory dichotomy) [Buccafusco, “IP Law”].
45. Constance Classen, David Howes & Anthony Synnott, Aroma: The Cultural History of Smell (London: Routledge, 1994) at 5.
46. William Ian Miller, “Darwin’s Disgust” in Howes, supra note 42, 335 at 349 (smell ranks so low that “the best smell is not a good smell but no smell at all” at 349); see especially Howes & Classen, supra note 3 at 93-110, 118-122; see e.g. Buccafusco, “Sauces”, supra note 39; Buccafusco, “IP Law”, supra note 44; Broussard, supra note 40.
47. C.f. Howes & Classen, supra note 3 at 109 (“[t]he underlying question is whether objects of substances that cannot be seen and are therefore not in plain view, can be considered as being in plain view if they can be felt, smelt, or otherwise sensed. Discussion of this perplexing question has amounted to almost a trial of the senses themselves”).
48. Sprow, supra note 4 at 301-02. I am of the view that the literature in this area overstates the problem by discussing the “unreliability” of smells or of the sense of smell. The difficulty in determining the amount of time that an odour has been present, the mobility of odours, and the inability to immediately trace the odour to a specific source do not suggest that the information that smells provide is unreliable; these characteristics of smells merely limit the kind of information that smells reliably provide. However, as a thorough examination of this question is beyond the scope of the present paper, I have chosen to use language consistent with the existing jurisprudence and commentary.
49. People v Hilber, 269 NW 2d 159 at 164 [Hilber].
50. State v Jones, 1998 WL 515939 at 3 (1998) [Jones].
51. People v Taylor, 564 NW 2d 24 (1997) [Taylor] (the Court distinguishes between smell, on the one hand, and sight and touch, on the other, because the United States Supreme Court has recognized a “plain touch” corollary to the plain view doctrine; see text accompanying note 82).
52. Ibid at 30.
53. People v Marshall, 69 Cal 2d 51 at 59 (1968) [Marshall].
54. Hilber, supra note 49 at 163-64.
55. Ibid at 164.
56. Polashek, supra note 33 at 440.
57. Michael G Getty, “Probable Cause: Illinois Adopts the Plain Smell Rule for Warrantless Searches of Vehicles”, Case Comment on People v Stout” (1986) 11 S Ill ULJ 153 at 162.
58. Jones, supra note 50 at 3.
59. People v Argenian, 423 NE 2d 289 at 290 (1981).
60. R v Simpson (1993), 12 OR (3d) 182, 79 CCC (3d) 482 (CA) [Simpson cited to OR].
61. Polashek, supra note 33 at 440 (Rosenberg JA appears to take Doherty JA’s statements in Simpson, supra note 60, out of context; the words “smell” and “odour” do not appear in Doherty JA’s judgment. Doherty JA was commenting on the subjectivity of a hunch, not of a smell: “[a] ‘hunch’ based entirely on intuition gained by experience cannot suffice, no matter how accurate that ‘hunch’ might prove to be. Such subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic origin or sexual orientation. Equally, without objective criteria detentions could be based on mere speculation” at 202).
62. See Part 5, below, for more on this topic.
63. Compare Getty, supra note 57 at 166ff (on the failure of American courts to provide clear guidelines for the application of the plain smell doctrine).
64. Sprow, supra note 4 at 304.
65. Marshall, supra note 53 at 59.
66. Bell, Hemmens & Gerhard, supra note 2 at 18; see e.g. United States v McKneely, 810 F Supp 1537 (1993) (a “chemical smell” emanating from the rear of a vehicle was not clearly identifiable to the officer as the smell of contraband; therefore, it did not create probable cause).
67. See e.g. Hilber, supra note 49 at 162 (the odour of unburned marijuana “indicates the actual presence of marijuana; [the odour of burned marijuana] indicates only that at some time in the past marijuana was present and burned”); see generally Ronald Richards, “The Nose Knows the Legal Accuracy of the Nose”, Case Comment on People v Taylor” (1999) 16 TM Cooley L Rev 323 at 338ff (on the distinction between the odour of fresh marijuana and the odour of burned marijuana, and on the distinction between the odour of burned marijuana and the odour of burning marijuana).
68. Bell, Hemmens & Gerhard, supra note 2 at 18.
69. Richards, supra note 67 at 335.
70. Classen, Howes & Synnott, supra note 45 at 2.
71. Richards, supra note 67 at 357.
72. Ibid.
73. Ibid.
74. Ibid at 357-58.
75. Ibid at 359.
76. Classen, supra note 42 at 74.
77. Getty, supra note 57 at 162.
78. Smith, supra note 27 at para 24.
79. Ibid.
80. Taylor, supra note 51 at 30
81. Ibid.
82. Minnesota v Dickerson, 508 US 366 (1993).
83. Sprow, supra note 4 at 304.
84. R v Mann, 2004 SCC 52 at para 5, [2004] 3 SCR 59.
85. Ibid.
86. Ibid at paras 45, 48-50 (the Court distinguished the investigative detention and protective search power from an arrest and the incidental power to search on arrest and held that “[t]he officer’s decision to go beyond this initial pat-down and reach into the appellant’s pocket after feeling an admittedly soft object therein is problematic [because the trial judge] found that the officer had no reasonable basis for reaching into the pocket”).
87. R v Ladouceur, 2002 SKCA 73 at paras 127-28, 165 CCC (3d) 321, Tallis JA, dissenting.