Pubdate: Tue, 08 Sep 2009
Source: Chronicle Herald (CN NS)
Copyright: 2009 The Halifax Herald Limited
Contact:  http://thechronicleherald.ca/
Details: http://www.mapinc.org/media/180
Author: Beverley Ware
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)

MARIJUANA SEIZED FROM MAN'S JACKET NOT ADMISSIBLE AS EVIDENCE, JUDGE RULES

BRIDGEWATER - A Queens County man's rights were violated when police, 
searching for liquor in his car, also found marijuana in his coat 
pocket, a judge has ruled.

Judge Jim Burrill of provincial court said in a written decision 
released recently that the search was illegal, so the marijuana that 
the officer seized could not be used as evidence at Raymond 
D'Entremont's trial for possession of marijuana.

With that evidence excluded, "there is no evidence that the accused 
possessed marijuana at the time . . . and the accused is found not 
guilty of that offence," Judge Burrill ruled.

Mr. D'Entremont was charged after two Queens County RCMP officers 
stopped a black Volkswagen Passat at a checkpoint in Port Mouton on 
April 18, 2008.

One officer smelled alcohol on Mr. D'Entremont's breath and gave him 
a roadside screening test. The officer also saw a liquor store bag in 
the back seat and told the second officer to search the car while he 
dealt with Mr. D'Entremont because he felt there could be open liquor in it.

The second officer saw a liquor store bag at the feet of the female 
passenger, who also smelled strongly of alcohol. He arrested her and 
told her he was going to search the car. He found a box of Bacardi 
Breezers at her feet and found another bag with four more Breezers 
behind her seat, plus a bag on the back seat with wine in it.

Then he found a dark leather jacket, put his hand in the pocket and 
found a bag of marijuana.

Judge Burrill said the officer "indicated that he was searching the 
vehicle only for liquor -that in his experience he found mickeys or 
cans of beer in pockets before."

The judge ruled that while police acted properly in stopping the car, 
conducting the roadside screening test and searching the car for 
liquor, the second officer went beyond his authority by looking in 
the jacket pocket.

Defence lawyer Philip Star argued "that the jacket could easily have 
been patted, as it were in the pocket area, patted to determine 
whether or not there was a liquor container in that pocket."

Prosecutor Josh Bryson argued that since the officer was authorized 
to search for liquor, "if he chose to put his hand in the pocket to 
conduct that search, then it's authorized by law."

Judge Burrill said he believes the officer expanded the scope of the 
legal search for liquor to a general search for anything illegal.

"I am persuaded that when he put his hand in the jacket pocket that 
he was searching for something other than liquor at that particular 
time and that the search had become, at that particular point in 
time, a general search for contraband."

The judge said his decision is specific to this case.

"I don't say that to say that an officer may never reach his hand in 
a jacket pocket in a vehicle to determine whether or not there is 
liquor present," he said as he acquitted Mr. D'Entremont.
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