Pubdate: Wed, 10 Dec 2008
Source: Province, The (CN BC)
Copyright: 2008 Canwest Publishing Inc.
Contact: http://www.canada.com/theprovince/letters.html
Website: http://www.canada.com/theprovince/
Details: http://www.mapinc.org/media/476
Author: Keith Fraser, Staff Writer

DRUG CHARGES DISMISSED AFTER JUDGE FINDS SEARCH A VIOLATION

Charges have been dismissed against an alleged cocaine trafficker
after a judge found a police pat-down search and a search of the
accused's vehicle were in violation of his rights.

On Jan. 12, 2006, an RCMP officer received a message saying that a
drug deal had taken place. A description of the vehicle involved was
given.

A few minutes later, on 200th Street in Langley, the cop pulled over a
vehicle of the same description and licence plate number being driven
by Marco Ivaca Tomasevich, 23.

Tomasevich's Chevy Impala was going 85 in a 70 km/h zone. On
approaching the vehicle the cop noticed a sweet chemical smell he
associated with drug dealers and methamphetamine labs.

A computer check found Tomasevich had a prior conviction for uttering
threats.

Tomasevich signed a consent form allowing a search of his
vehicle.

The police decided to do a pat-down search for safety reasons and
Tomasevich agreed to it, pulling a plastic bag out of his pocket
containing six individually wrapped rocks of crack cocaine and
claiming it was owned by a friend. He carried $395 and a cellphone.

A search of the vehicle revealed two more cellphones, one of them
ringing constantly, seven grams of pot and a digital weigh scale. When
the cop answered the ringing phone, he heard the caller ask "Mark" if
he could get an ounce for $90.

In a 13-page ruling, B.C. Supreme Court Justice John Truscott found no
problems with many of the actions of the officers, but ruled that
prior to asking for consent to the search, the cops should have
advised the accused of his right to consult a lawyer.

"I find that the pat-down search was an unnecessary interference with
the accused's liberty and a violation of his rights," Truscott said.

The judge concluded the seizure of the cocaine was unreasonable and
the drug evidence should be excluded.

Lacking any evidence, charges of possession of cocaine for the purpose
of trafficking and possession of cocaine were dismissed against Tomasevich.

Prosecutors are reviewing the ruling.
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