Pubdate: Sat, 28 Sep 2002
Source: Winnipeg Free Press (CN MB)
Copyright: 2002 Winnipeg Free Press
Contact:  http://www.winnipegfreepress.com/
Details: http://www.mapinc.org/media/502
Author: Mike McIntyre

SEARCH LEGAL, POT SUSPECT'S ACQUITTAL OVERTURNED

Winnipeg police have been given the thumbs up for a controversial
pat-down which netted them a suspected drug dealer.

The Manitoba Court of Appeal this week overturned the acquittal of a
city man found with a quantity of marijuana in a pouch pocket. A new
trial has been ordered.

A lower court judge had previously dismissed the case against the man,
saying the police search that uncovered the drugs was illegal.

But the Appeal Court disagreed, saying police have the right to pat
down potential suspects and submit what they may find as evidence as
long as searches are being done for safety reasons.

Philip Mann was arrested nearly two years ago when police responded to
a report of a break-in.

Police stopped Mann on the street because he matched the description
of the suspect. Mann agreed to let police do a "security search,"
which officers describe as a "pat-down of the extremities as well as
the torso" in order to check for potential weapons.

Police say Mann was wearing a pullover sweater that had a pouch in the
front. An officer brushed against the pouch and said he felt something
soft inside.

He searched and found a plastic bag containing 27.5 grams of
pot.

"Because I feel something soft in the front, it may be hiding
something hard behind, a weapon or anything," the officer said as he
explained his reasons for the search to the trial judge.

Mann was charged with possession for the purpose of trafficking. He
was acquitted when the trial 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, saying a
pat-down search should include the right to search pockets, especially
if an object is felt inside.

"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 decision.

"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."

Mann's new trial date has not been set. 
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MAP posted-by: Richard Lake