NB: Ruling needed on vehicle searches: judge, Moncton courts divided on constitutionality of warrantless searches Options

[medpot]

Times & Transcript

Letters to the Editor


Ruling needed on vehicle searches: judge


Published Wednesday August 13th, 2008


Moncton courts divided on constitutionality of warrantless searches


A3 By Craig Babstock
Times & Transcript Staff

With the Moncton judiciary split on the legality of a local Mountie's vehicle searches, Judge Irwin Lampert says it's time for New Brunswick's Court of Appeal to rule on the subject.

Lampert gave a lengthy decision yesterday afternoon, ruling that 50 pounds (23 kilograms) of marijuana found during a vehicle search on Highway 2 (the Trans-Canada Highway) can be admitted into evidence. Gee Van Wong is charged with possession for the purpose of trafficking after being stopped near Petitcodiac last October. The matter will return to court in mid-September.

But this is one of many cases involving Caledonia RCMP Const. Stephane Raymond -- a 17-year veteran and dog handler who works in Caledonia's Roving Traffic Unit -- which have come before the Moncton court over the past four years. While specific details differ, the cases are very similar.

Lampert said yesterday Raymond's cases involve motorists being pulled over for supposed traffic infractions, with no ticket actually issued. Before the motorist leaves, the officer asks if he can ask a few questions, suspicions are raised and the officer then asks if he can search the vehicle.

"I do not find this pattern of conduct to be illegal," said Lampert.

But he acknowledged opinion is split on the matter of warrantless police searches, both in Moncton and on a national level. For example, just over a month ago, Lampert's colleague on the Moncton bench, Judge Pierre Arseneault, ruled drug evidence seized during a highway vehicle search could not be admitted into evidence because the search was illegal.

In that case, the judge ruled Raymond was acting on a hunch more than reasonable grounds. As a result, drug charges against Kinte Ambrose were withdrawn.

While the specific details of the two cases differ, they followed the same pattern. A motorist was stopped on suspicion of a Motor Vehicle Act infraction and questioned by Raymond. When the officer felt he had the grounds for a search, he asked the driver if he could search the vehicle and was given permission to proceed without a warrant.

Lampert said there are many cases involving the same officer and the same pattern of investigation, and the provincial court is obviously divided on the constitutionality of the searches.

"It's time for the Court of Appeal to take a look at this matter," said the judge.

Defence lawyer Scott Fowler, who represents Wong, agreed after court that it seemed like the judge was taking the rare step of inviting the lawyer to appeal his decision to a higher court.

"I'm going to have to talk to my client about that. I'd like to (appeal it), but the decision has got to be his," said Fowler.

When asked if he's dealt with drug cases involving Raymond in the past, Fowler said he has.

"I think we all know of them, all the defence bar down here is aware of what's going on," he said. "Some judges, as you heard, have different opinions as to whether (police) should be permitted to do that."

While Fowler didn't use the phrase yesterday, these cases are referred to by some local defence lawyers as 'Raymond stops.'

While Fowler doesn't know if his client will want to take this case to the Appeal Court in Fredericton, it's only a matter of time until someone does it.

"So many of these cases are fact-specific, but I believe it's improper, this whole procedure. But that's just me," said the lawyer. "At some point in time the Court of Appeal will pronounce on it, whether it's in this case or someone else."

The Wong case dates back to Oct. 11. According to evidence given by Raymond during the voir dire on the admissibility of the seized drugs, he pulled over the accused because he didn't think he was wearing a seat-belt.

When the vehicle stopped, Raymond saw the driver was buckled up and when he checked his documents, he saw Wong had no criminal record. He told Wong he was free to go, but asked if he could ask him a few questions first and Wong agreed. He told the court he's trained to notice indicators of criminal activity and was alerted by Wong's shaky hands, the odour of fresh paint and the presence of food wrappers in the vehicle.

Wong said he was driving from Ontario to Halifax in his son's vehicle and Raymond said he appeared to be nervous, with bloodshot eyes and had trouble swallowing. When Raymond asked if he was carrying drugs, he dropped his head.

Lampert said the officer testified he asked if he could search the vehicle, while telling Wong he was free to refuse and leave. Wong consented to the search, even though Raymond said he could be charged if anything was found.

The 50 pounds (23 kilograms) of marijuana was found in a duffel bag in the trunk.

At the voir dire hearing, Fowler argued his client's rights were violated by the search, while federal prosecutor Christian Libotte argued Wong consented to the search.

Lampert went through a lengthy decision and much case law in reaching the conclusion the search in this case was legal, because Wong was free to leave, yet consented to the search.

While reading his decision, the judge also highlighted the importance of police having reasonable grounds prior to conducting searches.

He said if police are allowed to search people based on guesses or hunches, it "can too easily mask discriminatory conduct."

[medpot]

Times & Transcript

Letters to the Editor


Opinion


Freedom must be protected



Published Thursday August 14th, 2008

In Moncton Tuesday, Provincial Court Judge Irwin Lampert rendered a decision in a drug possession for the purpose of trafficking case, finding a police search of a suspect's vehicle legal, then bluntly inviting the defence to appeal his ruling because judges are split on whether police tactics are constitutional or not.

It may be unusual, but Judge Lampert is correct. The matter needs to be clarified. It goes to the very heart of our freedoms and constitutional rights.

A democracy isn't worth much if everyone's rights and freedom are not respected and constitutional protections are not applied equally to all, including criminals and others who for some reason may seem suspicious.

At the heart of this and other recent cases locally are the actions of a single RCMP officer whose methods have raised many legal eyebrows. Police are supposed to have reasonable grounds or just cause to stop people and conduct searches. But where, exactly, are the lines drawn between reasonable and unreasonable; just and unjust?

The officer in these particular cases has been stopping vehicles (are these random stops or reasonable?) for alleged traffic violations although often it turns out there was none. Once stopped, and if papers check out, the citizens are told they are free to go, but asked if they'd mind answering a few questions. Why? This is the start of a fishing expedition with no grounds or just cause. If the officer gets suspicious during the questioning, the person is asked if a search can be conducted? Are the suspicions, created by his own questions, reasonable grounds? What degree of intimidation is going on here simply by the fact the citizen is dealing with an armed police officer and is alone on the side of a highway? Many people would say "yes, go ahead and search" simply because they fear what might happen should they say "no," as is their right.

In our opinion, the judges who have ruled that this violates constitutional rights are correct. Canadians should be protected from this sort of thing.

And there is good reason. The potential for abuse of the tactics, even if it is not happening locally, is enormous. Our freedoms and rights are far too important to allow such violations simply to collar a few extra drug dealers or other criminals.

[papapuff]

The Amherst Daily

14/08/08


N.B. Mountie explains roving traffic unit’s practices amid court comments


CRAIG BABSTOCK
The Canadian Press

MONCTON, N.B. — RCMP Cpl. Rick Tessier says the Mounties in his roving traffic unit don’t pull over motorists on the highway in New Brunswick because they look like drug traffickers.

They also don’t disregard charter rights in order to seize drugs and make an arrest. And when an officer tells a motorist he’s free to go or free to refuse questions or a search, Tessier says that motorist is free to leave.

‘‘I’ve had people refuse (my request), I tell them to have a nice day and they put the car in drive and they leave,’’ he says.

Police searches are a live issue in courts across the country and Moncton, N.B., is no exception.

From Moncton provincial court to the Supreme Court of Canada, lawyers are debating the legality of everything from police dogs sniffing luggage at the bus station to Mounties searching vehicles during a highway traffic stop.

Moncton provincial court has seen two cases over the past few weeks involving traffic stops on Highway 2. In both cases, Const. Stephane Raymond received permission to ask the driver a few questions and then received permission to search the vehicle. Both times approximately 23 kilograms of marijuana were seized.

In one instance, Judge Pierre Arseneault ruled the marijuana could not be entered into evidence because he felt the officer acted on a hunch, not reasonable grounds. In a case this week, Judge Irwin Lampert ruled the officer had obtained permission for the search and allowed the marijuana into evidence.

But Lampert also said judicial opinion in Moncton and elsewhere is clearly divided on the subject. He suggested the matter should be brought before the New Brunswick Court of Appeal for a decision.

‘‘I like judge Lampert,’’ says Tessier. ‘‘I don’t have a problem with what he’s saying.’’

Tessier was promoted to head of J Division’s roving traffic unit in March. The unit has three members in the southeast part of the province, including Tessier, and two in the northwest region. He says they spend most of their time patrolling the Trans-Canada Highway and since January have seized $6 million worth of drugs and contraband tobacco from vehicles.

Tessier took a break from his patrol Thursday to sit down and talk about his unit and how the officers operate, given the recent discussion of vehicle searches in court.

He’s heard local defence lawyers refer to their procedures as unconstitutional and improper, but he says those lawyers are hired to defend their clients, so that’s to be expected.

Most of the attention the traffic unit receives is when an officer catches a big shipment of drugs, but Tessier says they do a lot more than watch for drugs on the highway. They enforce the Motor Vehicle Act, Criminal Code, offer assistance to drivers and even give directions.

‘‘We talk to people who say they’re driving to Montreal, but are actually heading east,’’ he says with a chuckle.

While they have many duties, officers are cognizant of the fact the Trans-Canada is the pipeline organized crime uses to bring drugs into Atlantic Canada.

So when they pull someone over, the officers have their eyes open.

Tessier says there’s no truth to the suggestion police invent motor vehicle infractions simply to pull over people they suspect of running drugs.

‘‘I cannot tell you what a travelling criminal looks like,’’ he says. ‘‘But I can tell you how a travelling criminal behaves.’’

Officers in this unit are trained under the RCMP’s Pipeline program to spot people transporting illegal goods. During a traffic stop, they have a series of indicators they look for that raise suspicions there’s something illegal in the vehicle.

Tessier says no one indicator is enough. It takes a series of red flags to make an officer suspect something.

For an example, he talks about a motorist being nervous. He says it’s natural for a driver to be nervous when talking to a police officer. But most people become less nervous as the encounter progresses.

People with a trunk full of marijuana or cocaine get more nervous the longer the encounter goes on. Combine that with other indicators and the officer may decide the situation requires more attention.

Tessier says according to police protocol, the officer completes the motor vehicle matter and returns the driver’s licence and registration. If he has any suspicions, he tells the motorist he’s free to leave, but asks if he can ask him a few questions.

Tessier says some people say no and drive away, while others agree to talk.


15/08/08

[medpot]

Times & Transcript

Letters to the Editor


Mounties defend searches


Published Friday August 15th, 2008

Vehicles aren't searched without consent or reasonable grounds, police say

A1 By Craig Babstock
Times & Transcript Staff

RCMP Cpl. Rick Tessier says the Mounties in his Roving Traffic Unit don't pull over motorists on the highway because they look like drug traffickers.

They also don't disregard Charter rights in order to seize drugs and make an arrest.

And when an officer tells a motorist he's free to go or free to refuse questions or a search, Tessier says that motorist is free to leave.

"I've had people refuse (my request), I tell them to have a nice day and they put the car in drive and they leave," he says.

Police searches are a live issue in courts across the country and Moncton is no exception. From Moncton provincial court to the Supreme Court of Canada, lawyers are debating the legality of everything from police dogs sniffing luggage at the bus station to Mounties searching vehicles during a highway traffic stop.

Moncton provincial court has seen two cases over the past few weeks involving traffic stops on Highway 2 (the Trans-Canada Highway) in this region. In both cases, Const. Stephane Raymond received permission to ask the driver a few questions and then received permission to search the vehicle. Both times approximately 50 pounds (23 kilograms) of marijuana were seized.

In one instance, Judge Pierre Arseneault ruled the marijuana could not be entered into evidence because he felt the officer acted on a hunch, not reasonable grounds. In a case this week, Judge Irwin Lampert ruled the officer had obtained permission for the search and allowed the marijuana into evidence.

But Lampert also said judicial opinion in Moncton and elsewhere is clearly divided on the subject. He suggested the matter should be brought before the New Brunswick Court of Appeal for a decision.

"I like Judge Lampert," says Tessier. "I don't have a problem with what he's saying."

Tessier was promoted to head of J Division's Roving Traffic Unit in March. The unit, based out of District 11's Riverview office, has three members in the southeast part of the province, including Tessier, and two in the northwest region. He says they spend most of their time patrolling the Trans-Canada Highway and since January have seized $6 million worth of drugs and contraband tobacco from vehicles.

Tessier took a break from his patrol yesterday to sit down at the Salisbury Big Stop and talk about his unit and how the officers operate, given the recent discussion of vehicle searches in court. He's heard local defence lawyers refer to their procedures as unconstitutional and improper, but he says those lawyers are hired to defend their clients, so that's to be expected.

Most of the attention the traffic unit receives is when an officer catches a big shipment of drugs, but Tessier says they do a lot more than watch for drugs on the highway. They enforce the Motor Vehicle Act and the Criminal Code, offer assistance to drivers and even give directions.

"We talk to people who say they're driving to Montreal, but are actually heading east," he says with a chuckle.

While they have many duties, officers are cognizant of the fact the TCH is the pipeline organized crime uses to bring drugs into Atlantic Canada. So when they pull someone over, the officers have their eyes open.

Tessier says there's no truth to the suggestion police invent motor vehicle infractions simply to pull over people they suspect of running drugs.

"I cannot tell you what a travelling criminal looks like," he says. "But I can tell you how a travelling criminal behaves."

Officers in this unit are trained under the RCMP's Pipeline program to spot people transporting illegal goods. During a traffic stop, they have a series of indicators they look for that raise suspicions there's something illegal in the vehicle.

Tessier says no one indicator is enough. It takes a series of red flags to make an officer suspect something.

For an example, he talks about a motorist being nervous. He says it's natural for a driver to be nervous when talking to a police officer. But most people become less nervous as the encounter progresses.

People with a trunk full of marijuana or cocaine get more nervous the longer the encounter goes on. Combine that with other indicators and the officer may decide the situation requires more attention.

Tessier says according to police protocol, the officer completes the motor vehicle matter and returns the driver's licence and registration. If he has any suspicions, he tells the motorist he's free to leave, but asks if he can ask him a few questions.

Tessier says some people say no and drive away, while others agree to talk. When asked if he thinks the presence of an armed police officer at the window may intimidate some people into staying, Tessier says people say no and drive away all the time.

If the answers to the questions continue to elevate the officer's suspicions, he may ask if he can search the vehicle, again explaining that the motorist can say no. The officer is supposed to tell the motorist if anything is found during a search, it can be used against him. Tessier says it's not uncommon -- as with the two recent cases in Moncton court -- for a person with hundreds of thousands of dollars worth of drugs in the car to agree to a search.

If the officer already has reasonable grounds, such as seeing a joint in the ashtray, Tessier says that's enough to search without consent.

The corporal says drug traffickers often consent to searches because they want to look co-operative, they don't believe the officer will search or they don't believe the Mountie will find anything. He says they also sometimes believe if they co-operate, it will look good in court.

Tessier says the officers in the unit are trained to look for criminal activity and trained to follow the proper procedures. He says if a case goes to court, the officer knows he must be able to explain exactly why he felt the need to ask questions and request a search.

"We, as police officers, do not go on a hunch," he says.

Sometimes judges don't agree with the officer's tactics and the search is ruled illegal. Tessier says in those cases, they review what went wrong and try to improve their techniques. He describes this as an evolving area of law enforcement.

When asked if officers would do an illegal search without reasonable grounds if it meant getting drugs off the street, but no conviction in court, Tessier says no.

"That's a myth," he says. "We would be doing a disservice to the public by not bringing these people to court. I like to have a conviction at the end of the business day."

[FrankD]

Learn about your rights BEFORE you need to protect them!
http://frankdiscussion.net/knowyourrights.html

-FD

[cheryl9608]

"We, as police officers, do not go on a hunch," he says.

Sometimes judges don't agree with the officer's tactics and the search is ruled illegal. Tessier says in those cases, they review what went wrong and try to improve their techniques. He describes this as an evolving area of law enforcement.

When asked if officers would do an illegal search without reasonable grounds if it meant getting drugs off the street, but no conviction in court, Tessier says no.

"That's a myth," he says. "We would be doing a disservice to the public by not bringing these people to court. I like to have a conviction at the end of the business day."

Liar. I repeatedly heard, as a LEO, when a case was thrown out for Charter violations, "Who cares, at least we got the drugs off the street." Most cops don't give a flying f*** about our Charter rights, only their own.

And since when don't cops operate on a hunch. The ones that do are often praised for acting on gut instinct. What's the diff?

[medpot]

Thanks for telling the truth Cheryl!

Sometimes the feeling of power and control could make them feel egocentric, and I suppose that it's a reason why many cops only think about their own rights.

When some cops are caught breaking some laws or for corruption, they have a whole crew protecting them, and the chastisement isn't as severe compared to any other citizens.


Marc

[cheryl9608]

Thanks for telling the truth Cheryl!

Sometimes the feeling of power and control could make them feel egocentric, and I suppose that it's a reason why many cops only think about their own rights.

When some cops are caught breaking some laws or for corruption, they have a whole crew protecting them, and the chastisement isn't as severe compared to any other citizens.


Marc

Hi Marc,

I agree fully. Unfortunately, when bad cops get away with their shit, all the good hard work carried out by the many, many dedicated cops out there is sadly diminished. There is no reason at all that cops can't continue to do good work, within the confines of the Charter. And as we all know by now, no one exercises their Charter rights faster than a detained/arrested/charged cop!