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Drug conviction overturned

B.C. Court of Appeal judges last week threw out a drug conviction that stemmed from a 2005 incident in White Rock, describing the original decision as one that supports a “serious error of law.”

“What the judge has permitted is an expansion of a search authorized for a limited purpose to a general search for contraband on a hunch,” Justices Donald, Rowle and Saunders ruled.

“He has allowed the police to rummage for whatever might look suspicious, regardless of the authorized limits of the search.”

Mark Thomas Dreyer was convicted in Surrey Provincial Court Jan. 24, 2007, of possession of cocaine for the purposes of trafficking. According to the Feb. 27 judgment, Dreyer was arrested in White Rock on Sept. 8, 2005.

Officers stopped a car in which Dreyer was a passenger because they noticed the vehicle’s tail lights were off.

Evidence showed Const. Joel Shoihet searched the car after noticing an open bottle of beer on the floor behind the driver’s seat. During the search, he became suspicious of a crumpled brown paper bag that was between the driver’s seat and centre console. Upon opening the bag, he found four half-gram packages of cocaine.

Shoihet then arrested Dreyer and the car’s driver, and continued searching the car. His search found a plastic Ziploc bag containing two half-gram packages of cocaine under the front passenger seat.

The appeal court justices agreed it was significant that Shoihet “knew there was no liquor in the paper bag and did not think he had grounds for arrest before he opened it.” They also agreed Shoihet’s claim he looked in the bag to ensure its contents weren’t a safety risk is “unsupportable.”

The justices found Dreyer had a reasonable expectation of privacy, even if the bag was not labeled as his and the accused made no claim to the bag at the time of arrest.

“The appellant testified that he stashed the drugs in the bag to prevent theft from customers. Keeping the drugs out of sight is connected with his concern for privacy,” the justices found.

Donald, Rowle and Saunders agreed the Act under which Shoihet was authorized to search, the Liquor Control and Licensing Act, did not authorize the blanket search of the car that was carried out.

Donald found, and Rowle and Saunders agreed, the breach was a serious one.

“It represents a deliberate abuse of a limited power to search, and the officer showed bad faith in trying to justify it on a spurious claim of safety. Such an abuse cannot be shrugged off as merely trivial’ it must be condemned by a decision to exclude the evidence, so that the Charter will be seen to matter in actual cases and not just in theory. The reputation of justice will be harmed by allowing this improperly obtained evidence to lead to a conviction,” the judgment states.

“Passengers in motor vehicles are entitled to the privacy of the personal effects they carry with them. The integrity of the justice system requires this entitlement to be respected. Exclusion of the evidence signals the importance of the right and discourages overzealous searches.”

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