JUDGE RULES AGAINST SEARCH

Cocaine Evidence Thrown Out; Police Violated Stabbing Victim's
Privacy When They Returned To His Home Hours Later 'To Turn It Upside
Down,' Judge Decides

SURREY - Three kilograms of cocaine found in a stabbed Surrey man's
garage can't be used in evidence against him because the RCMP
violated his privacy.

B.C. Supreme Court Justice Harry Slade says the local Mounties had no
right to look in the man's garage, hours after the knifing, and
discover the illicit narcotics.

A man's home is his castle.

The Horsemen had been summoned to Roy Donald McCormack's home after a
neighbour called 911 on Sept. 18, 2004 and reported two men fighting
on the lawn, one with a gun.

McCormack himself called 911 moments later, saying he'd been stabbed
and needed an ambulance.

Two RCMP officers found him lying in the foyer of his home,
hemorrhaging in a pool of blood.

They made a cursory search of the residence to see if the assailant
was still inside.

They couldn't see a knife or a gun, but there were blood trails
throughout the house, including one to the garage.

McCormack, who was uncooperative, protested loudly when police
started looking around and demanded they leave his house.

He kept it up until carted away by the ambulance crew.

A few hours later, after the Mounties had left the home as well, the
ranking officer at the Surrey detachment decided a search team would
go back and turn it "upside down" looking for weapons or other evidence.

At about 6:30 a.m., Sept. 18, a search team returned to McCormack's
home and several hours later they found a black canvas bag in the
garage containing three one-kg bricks of blow.

In doing so, Slade concluded this week, the Mounties stepped on
McCormack's Charter rights and ordered the cocaine excluded as
evidence from his trial in New Westminster.

The Supreme Court of Canada long ago said warrantless searches were
unreasonable in all but exceptional circumstances.

It has also decreed the Charter of Rights and Freedoms constrains
police power: Police must demonstrate they are acting in the course
of their duty and that their conduct amounts to a justifiable use of
police powers associated with that duty.

Slade decided that the first cursory look around the home by the
RCMP, though warrantless, was okay because of the risk posed by the gun call.

"Given the patent danger reported in the first 911 call and the
urgency of the second 911 call, it is plain that the initial entry
into the residence to protect the life and safety of the accused was
justifiable," the justice ruled.

He went on: "The accused's express withdrawal of the implied licence
to enter the premises, conferred by his 911 call to the ambulance
service, is of no consequence in the face of a clear police and
public safety basis." The second search, hours later, was a different matter.

"The difference between the two searches is that the second search
did not appear to be motivated by a concern for immediate officer or
public safety," the justice said.

"The second search interfered with the same privacy right as the first.

"The nature and extent of the interference with the accused's right
to privacy was significant. . . . I conclude that there was no lawful
basis for the second search."

As a result, Slade decided to exclude any evidence about the
discovery of cocaine in McCormack's garage from his trial:

"The unreasonable search violated a core expectation of freedom from
state interference by gravely disappointing the accused's expectation
of privacy in his own home, an expectation that the law has
sedulously fostered."

Admitting the evidence, he added, would bring the administration of
justice into disrepute.