Pubdate: Thu, 23 Feb 2017
Source: Calgary Herald (CN AB)
Copyright: 2017 Postmedia Network
Author: Kevin Martin
Page: A7


Const. Robert Cumming didn't follow police protocol when he took home
a seized backpack containing two baggies of marijuana, a senior
officer testified Wednesday.

Det. Timothy Fitzgibbon said Cumming should have requested a case
number after an undercover officer, posing as a concerned citizen,
handed him a backpack while he was on patrol. But Fitzgibbon told
Crown prosecutor Richard Tchir not only did Cumming not create a new
police file, he didn't take notes of receiving the item.

"If someone gives you property, you need to have a case number
generated," Fitzgibbon said. "No number was ever generated (by
Cumming) for that date."

Cumming, 44, faces charges of breach of trust, theft and possession of
a controlled substance in connection with an incident June 3.

Court heard the officer took the backpack to his home and placed it in
a garbage bin behind the residence while he was on duty.

He returned home after work and retrieved the item from the trash and
took it into his house.

After his arrest, Cumming led officers to the two marijuana bags, each
containing about 14 grams, in his freezer.

Fitzgibbon said Cumming would have been required to complete an
occurrence report after being handed the contraband.

"There is no occurrence report for these items being found," he told
provincial court Judge Gerry LeGrandeur. "No notes were made on that

Fitzgibbon conceded Cumming could have asked for a file number days
later, although he didn't properly store the seized items.

"You don't take property home," Fitzgibbon said.

Under cross-examination, defence counsel Paul Brunnen grilled the
officer over the warrantless search of Cumming's home.

Fitzgibbon said Cumming signed a consent waiver to allow the search
after initially indicating he wanted to speak to a lawyer after his

The senior officer said Cumming insisted on leading investigators into
his home when told he had been under surveillance all day, but
Fitzgibbon delayed the search until he could get a waiver form brought
to the scene.

The delay followed two calls to Crown prosecutors to get legal advice,
Fitzgibbon said.

"You make two telephone calls to get legal advice and you never let
him make a call to get legal advice?" Brunnen asked.

"He waived that right," Fitzgibbon said.

Brunnen will argue the search of Cumming's home was unlawful and will
also suggest his client was a victim of entrapment.

The trial continues Thursday.
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