Drug Case Evidence Tossed

No Grounds for Stroke-Of-Luck Search, Judge Rules

It seemed a stroke of luck for Halifax Regional Police that a pair of officers responding to a car accident last year found a large quantity of drugs and a loaded handgun stashed in one of the damaged vehicles.

But their luck changed Monday when a Nova Scotia Supreme Court judge ruled that the constables lied to Christopher Henderson in order to search his car because they knew they had no grounds for a warrant.

In her decision, Justice Suzanne Hood said the young man’s charter rights clearly had been violated and she tossed out all the evidence.

As a result, the Crown withdrew the drug and weapons charges against Mr. Henderson.

At an earlier hearing, the court heard that Mr. Henderson was involved in a minor two-car accident on Victoria Road in Dartmouth on July 16, 2007.

While the other driver called the police, Mr. Henderson stashed his sweatshirt and some baggies of marijuana in the trunk of his vehicle, believing that was a private place the police couldn’t look.

Also hidden in the car was a loaded .38-calibre handgun, roughly five grams of hash and a 246-gram block of compressed marijuana.

When the police arrived, a passerby who had seen Mr. Henderson move the items passed the tidbit along to one of the officers.

Instead of speaking with the witness further and possibly gaining probable grounds for a search, Justice Hood said the officer made a note of the “vague” comment and took matters into his own hands.

During a routine check of the damaged vehicle, the officer told Mr. Henderson he smelled gas and asked him to pop the trunk.

There was conflicting testimony as to whether the officer told Mr. Henderson he was looking for damage to the gas line or whether the man just assumed that’s what he was doing. But when the officers’ notes didn’t jibe with their testimony in court, the judge favoured Mr. Henderson’s version of events.

Justice Hood said she thinks the officer assumed Mr. Henderson was hiding something when he was reluctant to open the trunk. She said it seems the officer knew he had no grounds for a search, so he made up the story of smelling gas.

“His guess turned out to be correct, but that is not grounds for a search,” she said. “It was an unfortunate lapse of judgment on his behalf.”

Although she had concerns that excluding the evidence would hamper the public’s faith in the justice system, Justice Hood decided that any “reasonable” person who knew all the facts would agree that the search was bad.

(jstewart@herald.ca)

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