Pubdate: Thu, 23 Nov 2017
Source: Province, The (CN BC)
Copyright: 2017 Postmedia Network Inc.
Author: Keith Fraser
Page: 17


A man has been acquitted after evidence that he had checked in a
suitcase containing a large quantity of drugs at Vancouver
International Airport was thrown out of court.

David Edward Herman checked in two pieces of luggage when he arrived
at the airport for a flight to Toronto on March 17, 2013.

One of the suitcases passed through security without incident and was
loaded onto the plane, but a screening of the second suggested it
might contain explosives.

When the suitcase was examined by security officers, they discovered
drugs later determined to be marijuana and hashish.

The RCMP were summoned and launched an investigation which resulted in
Herman being charged with possession of five kilograms of hashish and
more than 20 kilograms of marijuana for the purpose of

In August, B.C. Supreme Court Judge Barry Davies concluded that the
Mounties breached Herman's charter rights by conducting a warrantless
search of the suitcase at the airport.

The judge also found the "far more intrusive and still warrantless"
searches of Herman's luggage at an RCMP sub-detachment and the main
detachment of the RCMP in Richmond were continuing breaches of his
right against an unreasonable search.

He said he was not satisfied that the contents of the suitcase were in
fact in plain view so as to render the police conduct in searching the
luggage sufficiently reasonable to overcome the warrantless search.

The issue for the judge became whether to admit or exclude the
evidence at trial.

In a ruling released Monday, the judge said while the actions of the
police at the airport might have been considered relatively minor
given the discovery of the drugs earlier, he could not in fact make
such a finding.

He said police officers testified that they could have sought
assistance from the more experienced and knowledgeable airport
detachment of the RCMP and did not do so, and were aware that police
needed a warrant to search the suitcase.

"I find that in those circumstances, the charter-infringing state
conduct was both negligent and at least reckless if not wilful," the
judge said.

The Crown's submission that the "operational realities" of the
situation and the accused's reduced expectation of privacy should
excuse the misconduct amounted to an argument that since security
officers had authority to search for security purposes, the police had
"carte blanche" to search for drugs, Davies said.

The continuing searches of both suitcases by RCMP at the detachment
without a warrant demonstrated further disregard of Herman's rights,
he said.

"The blameworthiness of that conduct is exacerbated by the fact that
the contents of the suitcases had been secured at YVR. There was no
exigent circumstances necessitating highly intrusive investigation and
processing of exhibits without authorization that could have been
readily obtained in the circumstances," he said.

To allow the seriousness of the crimes and the reliability of the
evidence obtained from the warrantless searches to justify the
"seriousness" of the charter breaches would be wrong, the judge found.

On Wednesday, the Public Prosecution Service of Canada, which
prosecutes drug cases, said Herman was acquitted after the ruling.
- ---
MAP posted-by: Matt