Pubdate: Fri, 11 Sep 2015
Source: National Post (Canada)
Copyright: 2015 Canwest Publishing Inc.
Contact: http://drugsense.org/url/wEtbT4yU
Website: http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Author: Douglas Quan
Page: A6

POLICE PLANTED EVIDENCE, JUDGE RULES

Toronto police committed "egregious wrongful conduct" after they
planted heroin in a drug suspect's car to create a pretext for
searching the vehicle, a judge has found.

In January 2014, police arrested Nguyen Son Tran in the city's
Chinatown after finding 11 grams of plastic-wrapped heroin behind his
car's steering column. But Ontario Superior Court Judge Edward Morgan
ruled last week the officers never had the right to search the car and
they knew that, so they scattered loose powder in a visible location
next to the driver's seat.

"I conclude from all of this that the loose heroin was placed on the
console of the Toyota by the police after their search, and was not
left there by the defendant prior to the search," Morgan said as he
stayed charges against Tran.

Toronto police spokesman Mark Pugash said Thursday an internal
investigation by the Professional Standards Unit is underway. "We take
all comments of this type very seriously," he said. "Whatever action
is necessary will be taken."

It is unclear if criminal charges are being pursued against the
officers, who remain on regular duty. Tran's lawyer, Kim Schofield,
said they should be charged with obstruction.

The judge's findings come at a time when Toronto police have been
accused of disproportionately targeting visible minorities during
street checks, a tactic known as "carding."

Court heard different accounts of the events that led to Tran's
arrest.

Tran testified that while sitting at a red light, he noticed
Det.-Const. Benjamin Elliot in an unmarked car next to him. Elliott,
who is with the major crimes unit, had arrested Tran a year earlier
for heroin possession and Tran pleaded guilty.

Tran said he pulled into a parking lot and was approached by a
uniformed constable, Jeffrey Tout. He claims Tout was on his cellphone
and overheard Tout say, "Exactly him."

Two minutes later, Elliot and his partner, Sgt. Michael Taylor, pulled
up and Elliot placed Tran under arrest before searching the car. The
defence theorized that Elliot saw Tran drive by and called Tout to
stop Tran until he and his partner could arrive.

The officers gave a different account. Tout testified he approached
Tran in the parking lot after seeing him go through a red light. Tout
said he saw powder on the console and arrested Tran on suspicion of
possessing a controlled substance.

Elliot testified that the reason he and Taylor showed up was because
he heard Tout say over the radio he had stopped a car and when Tout
relayed the licence plate number he immediately recognized it from his
arrest of Tran a year before.

Taylor's handwritten notes also indicated that the reason they
attended the scene was because they had overheard the licence plate
number on the radio and "Elliot has investigated this before."

Yet when the defence played the radio-dispatch recordings during
cross-examination, the licence plate was never mentioned. "It appears
I was mistaken," Elliot said.

Like Elliot, Taylor "had no real explanation at all for the wrong
information that the two officers so coincidentally shared," the judge
later wrote, saying it was obvious the two had colluded to come up
with a "patently untrue" story.

"It is fair to say that Officer Elliot and Sgt. Taylor were caught
flat-footed by the recordings."

The judge also doubted the officers' account of what led them to
search the vehicle.

If Tran had gone to the trouble to hide the heroin, it is unlikely he
would leave loose powder around the car, the judge said. Why didn't he
sweep the powder away with his hand?

Had the officers "genuinely seen" powder on the console, they would
have called a forensic analyst to document the crime scene before
searching the car. Instead, they called for an analyst after the fact,
suggesting a strategy to "cover their own tracks."

"This police misconduct outweighs the roughly 12 grams of heroin found
by the police," the judge said.
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MAP posted-by: Matt