POLICE SEARCH POWERS LIMITED

Top Court Rules In Winnipeg Case

POLICE officers across the country can no longer go on "fishing
expeditions" by searching people without reasonable grounds to believe they
were involved in a crime, the Supreme Court of Canada ruled yesterday in a
landmark decision rooted in Winnipeg. The country's highest court
overturned a decision by the Manitoba Court of Appeal and ruled Winnipeg
police had no right to search the pocket of a native man found walking
downtown in December 2000.

Although police found 27.5 grams of marijuana on Phillip Mann, the evidence
has been discarded on the grounds it was illegally obtained. As a result,
Mann was cleared yesterday of drug-trafficking charges.

"Individuals have a reasonable expectation of privacy in their pockets,"
Justice Frank Iacobucci wrote in a majority decision that divided the high
court 5-2.

"The search here went beyond what was required to mitigate concerns about
officer safety and reflects a serious breach of (Mann's) protection against
unreasonable search and seizure."

Police claim they stopped Mann because he matched the description of a
native suspect wanted for a nearby break-and-enter.

Mann agreed to let police do a "security search," which officers describe
as a "pat-down of the extremities as well as the torso" to check for
potential weapons. Police say Mann was wearing a pullover sweater that had
a pouch in front.

An officer brushed against the pouch and said he felt something soft
inside. He searched and found a plastic bag containing the pot.

"Because I felt something soft in the front, it may have been hiding
something hard behind, a weapon or anything," the officer explained in
court as his reason for searching Mann.

Mann was charged, but acquitted at trial when the provincial court judge
ruled police had no right to go rummaging through his pockets. The judge
said there should have been no mistaking a soft object such as marijuana
for a potential weapon, and refused to allow the drugs to be used as
evidence against Mann.

The Crown appealed, and the Manitoba Court of Appeal overturned the
acquittal last year and ordered a new trial.

"As we are talking about a search undertaken for safety reasons, it would
not be reasonable to place too rigid a restraint on a police officer's
right to ensure (the suspect) has no weapon or other object," Justice Kerr
Twaddle wrote in his Court of Appeal decision at the time. "So long as the
court is satisfied the search for weapons was conducted in good faith and
not as an excuse to search the detainee for evidence of a crime, the
officer should be allowed some latitude."

After the Court of Appeal decision, Mann sought leave to appeal the issue
to the Supreme Court, which ruled yesterday the original acquittal was correct.

"The message has been clearly articulated -- police can't just stop someone
because they don't like the look of them," Mann's lawyer, Amanda
Sansregret, said yesterday.

This case was the first time the high court had examined an everyday police
practice that many law officers and prosecutors take for granted.

"There are now some parameters which have been set which, quite frankly,
are much needed," said Sansregret.

Although so-called racial profiling wasn't believed to be a factor in
Mann's case, Sansregret said police in Winnipeg and other jurisdictions
clearly focus on aboriginal people more than other races when conducting
routine checkstops.

"A lot of these stops have a major racial overtone to them," she said.

Winnipeg police spokesman Const. Bob Johnson said the high court's decision
means police officers will have to become more careful when searching
suspects, but denied police target people based on race.

Johnson said officers can still do a "pat-down" to check for weapons, but a
search inside a person's pockets will likely now have to be based on more
stringent grounds -- that there is reasonable evidence that person has been
involved in a specific crime. He said that means if police find no weapons,
they can't continue looking inside a person's pockets if they feel
something else.

The Crown argued to the Supreme Court that a pat-down search should include
the right to search pockets, especially if an object is felt inside.

The high court agreed yesterday that police can briefly detain a person for
investigative purposes, provided they have reasonable grounds to suspect
the person is connected to a particular crime.

Police can also do a pat-down search if they reasonably believe the person
presents a safety risk.

But reaching into someone's pocket because they feel something soft, as
happened in the Mann case, doesn't cut it, said the court.

"The search must be grounded in objectively discernible facts to prevent
'fishing expeditions' on the basis of irrelevant or discriminatory
factors," wrote Iacobucci.

Johnson said the court was not specific on whether an officer can ask a
suspect to voluntarily empty his or her pockets during a street search.

He added police are still reviewing the 39-page decision and will likely
incorporate it into future training.

By law, police can temporarily detain a person for questioning if they have
reasonable suspicions linking them to a crime. Officers are allowed to
conduct a quick search to make sure they're not carrying weapons, to
protect their own and the public's safety.