DRUG CASE EVIDENCE TOSSED

No Grounds For Stroke-Of-Luck Search, Judge Rules

It seemed a stroke of luck for Halifax Regional Police that a pair of
officers responding to a car accident last year found a large quantity
of drugs and a loaded handgun stashed in one of the damaged vehicles.

But their luck changed Monday when a Nova Scotia Supreme Court judge
ruled that the constables lied to Christopher Henderson in order to
search his car because they knew they had no grounds for a warrant.

In her decision, Justice Suzanne Hood said the young man's charter
rights clearly had been violated and she tossed out all the evidence.

As a result, the Crown withdrew the drug and weapons charges against
Mr. Henderson.

At an earlier hearing, the court heard that Mr. Henderson was involved
in a minor two-car accident on Victoria Road in Dartmouth on July 16,
2007.

While the other driver called the police, Mr. Henderson stashed his
sweatshirt and some baggies of marijuana in the trunk of his vehicle,
believing that was a private place the police couldn't look.

Also hidden in the car was a loaded .38-calibre handgun, roughly five
grams of hash and a 246-gram block of compressed marijuana.

When the police arrived, a passerby who had seen Mr. Henderson move
the items passed the tidbit along to one of the officers.

Instead of speaking with the witness further and possibly gaining
probable grounds for a search, Justice Hood said the officer made a
note of the "vague" comment and took matters into his own hands.

During a routine check of the damaged vehicle, the officer told Mr.
Henderson he smelled gas and asked him to pop the trunk.

There was conflicting testimony as to whether the officer told Mr.
Henderson he was looking for damage to the gas line or whether the man
just assumed that's what he was doing. But when the officers' notes
didn't jibe with their testimony in court, the judge favoured Mr.
Henderson's version of events.

Justice Hood said she thinks the officer assumed Mr. Henderson was
hiding something when he was reluctant to open the trunk. She said it
seems the officer knew he had no grounds for a search, so he made up
the story of smelling gas.

"His guess turned out to be correct, but that is not grounds for a
search," she said. "It was an unfortunate lapse of judgment on his
behalf."

Although she had concerns that excluding the evidence would hamper the
public's faith in the justice system, Justice Hood decided that any
"reasonable" person who knew all the facts would agree that the search
was bad.