RIGHTS BREACH ENDS DRUG CONVICTION

Appeal Court Says Officer Conducted Unreasonable Search Of Van That Turned
Up 49 Kilos Of Marijuana

A man caught two years ago with an estimated $400,000 worth of marijuana in
his van had his conviction overturned this week by the B.C. Court of Appeal.

In a 2-1 decision, the court ruled the police officer involved in the case,
Sergeant Glenn Magark, breached the Charter rights of Hung Duong Lam by
conducting an unreasonable search of his van and failing to give him a
police warning that he had the right to contact counsel without delay.

Appeal court justices Ian Donald and Risa Levine found the search was
unlawful because the officer was not motivated by a concern about weapons
or personal safety.

The court found the conduct of the officer reflected bad faith and that the
trial judge erred in failing to exclude the 49 kilograms (108 pounds) of
pot as evidence. The drugs, with a value of $3,000 to $4,000 per pound,
were seized from a van owned and driven by Lam.

Without the evidence, the Crown had no case, so the appeal court entered a
not-guilty verdict Wednesday. In a dissenting ruling, B.C. Court of Appeal
Justice William Esson dismissed Lam's appeal, finding that "the trial judge
reached the right conclusion for the right reasons."

Esson pointed out that a vehicle is "a much less private place than a home
or office ... a fact of which everyone who drives must be aware."

Lam was charged with possession of marijuana for the purpose of trafficking
after a Richmond RCMP officer noticed a parked van in a light industrial
area at 8:30 p.m. on Feb. 3, 2001.

Magark, a 28-year veteran of the RCMP, was on routine patrol of the area
near the Fraser River. He entered the vehicle's licence number into his
onboard computer and scored a "hit" -- the computer showed the vehicle was
owned by Lam, who was awaiting disposition on two drug charges dating from
Feb. 18, 1999. The computer also warned: "Caution .. Violence."

As a result, Magark stopped his police cruiser behind the van, put his
floodlights on and walked by the back and side of the van to the front
driver's side, noticing three large black duffel bags in the back.

The officer spoke with the driver, who presented a valid driver's licence,
but did not produce a valid vehicle registration, which the accused said
was at home.

Magark asked Lam what was in the bags and he replied that he was a
fisherman and it was his clothing. When the officer asked Lam if he would
show him the clothing, the accused exited the van, walked to the back of
the vehicle and opened the rear door.

Lam then stood back. Magark asked him to show the clothes in the bag.
Magark testified the accused appeared somewhat hesitant but moved to the
closest bag and slowly unzipped it.

Magark asked him to open the bag because he could not see in it and the
accused then reached into the bag and lifted up some green plastic bagging.
Magark, who had already called for back-up, then asked the accused to
return to the front of the car.

When the back-up officers arrived, Magark told them what had happened and
once again asked the accused to show him the clothing in the bag.

The officer and the accused returned to the back of the van. When the
accused pulled out the green bag, Magark was able to see some clear plastic
bags containing a brown or green "plant-like" material. Magark then told
one of the back-up officers to arrest the accused and his passenger for
possession for the purposes of trafficking.

Magark later obtained a search warrant to look inside the bags, which
contained marijuana, but the officer failed to give the standard police
warning to Lam when he was arrested -- that he could contact a lawyer
without delay.

Magark was previously sued by a North Vancouver man, David Glover, who was
shot during a drug-squad team executing a search warrant on Glover's
residence to check for marijuana on March 19, 1990.

Glover, who alleged in his lawsuit that Magark's conduct was negligent and
reckless, answered the door carrying a TV remote control, which Magark
thought was a knife when Glover lunged at him. A B.C. Supreme Court judge
dismissed the civil lawsuit in 1999, finding the shooting was an accident.
Magark shot another man in January 1992 during a church burglary
investigation. Shayne Hawkes, then 18, was hiding in a bathroom stall and
was unarmed when he was shot in the shoulder. He survived.