POLICE SEARCHES CAN BE TRICKY

Courts Tackle Questions Of Whether Drug Evidence Illegally Obtained

A motorist was stopped by an RCMP officer in September 2006 on
Highway 2 (the Trans-Canada Highway), near Berry Mills, with two
duffel bags full of marijuana.

He was charged with being in possession of marijuana for the purpose
of trafficking, but a Moncton judge recently acquitted him after
ruling the Mountie conducted an illegal search. A hearing was held in
Moncton provincial court to determine whether the contents of the
bags should be admitted into evidence and Judge Pierre Arseneault
ruled in the favour of the accused.

"In my opinion, admitting this evidence would undermine the integrity
of the criminal justice system rather than promote acceptable
investigatory techniques," said the judge, in his written decision.
"On the contrary, it would possibly encourage police officers to
detain motorists on less than the minimum reasonable grounds
requirement the law provides."

The judge found three violations of the man's Charter rights. He was
unlawfully detained, arrested without reasonable grounds and the
vehicle was searched without reasonable and probable grounds, leading
to the drug seizure.

James Letcher, the lawyer who defended Kinte Ambrose in this case,
says reasonable grounds can be different from case to case, depending
on the circumstances. But one common example in a situation like this
is if the officer got a strong smell of marijuana while standing next
to the driver's open window.

"It's got to be something that goes beyond mere intuition or a
hunch," says Letcher.

The lawyer says when the trial began, his client admitted the details
of the incident. The case turned on whether or not the judge allowed
the 44 pounds (20 kilograms) of marijuana to become part of the
evidence. Letcher says once it was excluded, the Crown had no more
case and the judge acquitted Ambrose.

The veteran defence lawyer says it's up to the courts to decide when
people's rights have been violated.

"The Constitution's protector is the courts, not the police," he says.

The legality of some police searches has been described to the Times
& Transcript as a "live issue" and an "unsettled area of law" over
the past few months, by individuals who follow the ever-evolving
Canadian legal system. For example, a recent Supreme Court of Canada
decision ruled random police dog searches at bus stations and schools
are unconstitutional of police did not have reasonable or probable
grounds to conduct the search.

In this particular case, Ambrose was pulled over around noon on Sept.
15, 2006, by Caledonia RCMP Const. Stephane Raymond. Caledonia
polices a large stretch of the Trans-Canada Highway in the southeast
region of the province and officers from that district have said many
times it's a drug pipeline between Atlantic Canada and the rest of the country.

Big drug arrests have become common on the Trans-Canada, such as the
one from March 26 of this year, when Raymond and his sniffer dog
Jasper pulled over a vehicle and found 155 pounds (70 kilograms) of
marijuana, worth $1.4 million, stuffed into two large hockey goalie
equipment bags.

In the Ambrose case, according to Arseneault's written decision,
Raymond, who has 17 years experience with the force, pulled over a
Ford Escape near Berry Mills. The driver's window was down and the
Mountie noticed the driver looked like he was daydreaming. When
Raymond looked up the licence plate, it looked like it may not have
been registered.

Raymond told the court that when he approached, he noticed Ambrose
had watery eyes and noticed the presence of an air freshener on the
rearview mirror, an energy drink, two cell phones and a duffel bag.
The accused told him he was driving from Montreal and from the rental
agreement the officer determined the accused had rented the vehicle
in Halifax the previous day around 10:30 a.m.

Raymond told the court that as a result of those observations, he
believed the driver might be transporting contraband. The documents
were in order and Raymond told the man he was free to go, then
proceeded to ask him some questions to confirm his "curiosity about
what was in that car," according to the judge's decision.

The constable testified that when he asked about drugs, Ambrose
became very nervous. When he asked if he could search the vehicle,
Ambrose gave him permission.

He was patted down by the officer, who told him he did not have to
consent to the search, but Ambrose said he believed the officer would
search the vehicle anyway, so he agreed to it.

Ambrose was very nervous and Raymond told the court he decided to
handcuff him and detain him. Ambrose then told the officer he was
carrying drugs and the dog found the bags.

Federal prosecutor Monica Johnson argued Raymond told Ambrose he was
free to leave, but the man stayed and answered his questions. She
also argued the search was legal because he consented to it. Johnson
took the position the officer had enough grounds to believe Ambrose
was involved in criminal activity.

Letcher argued once Ambrose's documents checked out, there was no
legal reason to detain him. Raymond was asking questions based on a
hunch, with no reasonable grounds.

Arseneault ruled that the fact Ambrose was nervous and driving a
rental vehicle with items like cell phones and a duffel bag inside
was not reasonable grounds for detention. The judge also said
Raymond's purpose in keeping the motorist at the scene was to
determine if anything illegal was in the vehicle.

"He was being detained solely on the officer's intuition he might be
carrying contraband," wrote the judge.