Tuesday, 20 July 2010

Calgary, Canada

Police search found lawful in drug conviction

A 23-year-old Calgary man was fined $750 during Banff Provincial Court Monday for possession of two grams of crack cocaine after Judge Marlene Graham ruled that Banff RCMP officers did lawfully detain and search the man.

Mustafe Jama was arrested on Aug. 30, 2009, at approximately 2:10 a.m. outside of the Aurora Nightclub after coming to the attention of the nightclub security staff.

Head of security at the nightclub, Stacy Sartoretto, testified that the evening began with a friend of Jama's being brought to a staff area in the back, to be questioned about an alleged stolen bottle of liquor.

As they were trying to question the friend, Jama and three other friends were acting aggressive and being uncooperative with the nightclub's security staff, including accusations of racism.

During this altercation, Sartoretto as well as doorman Nicholas Toma, testified they saw a hand-to-hand exchange between Jama and the friend during the interrogation by the security staff about the stolen bottle.

Testimony from the witnesses showed that Jama started to act differently after the exchange and, instead of interfering with the interrogation, he started to head towards the exit.

"It was suspicious," Sartoretto said in his witness testimony.

While Sartoretto said he thought it could have been a weapon and was worried for the safety of the security staff and the patrons, Toma said he was unsure of what was exchanged.

There was a confrontation between Jama, Sartoretto and Toma that led to Toma and Sartoretto lifting Jama up a flight of stairs. At the top of the stairs was Const. Marc Fournier who administered a search to initially find a plastic bag with one gram of crack cocaine. Sartoretto originally told Fournier that Jama might possibly have a weapon.

"As a result of feeling something hard and suspicious in that pocket Fournier pulled out a white plastic bag with a rock of what was believed to be crack cocaine," Graham said.

In a more thorough search, another one-gram bag of crack cocaine was found in the same pocket. The street value of the drugs range from $170 to $220.

Defence lawyer Mark Takada argued that Fournier should not have detained Jama because he had no reasonable grounds to do a search, other than a pat-down search and he was also going on the word of the nightclub security staff. In Fournier's witness testimony, he could not remember whether he administered a pat-down search or not.

Graham found that with all of the evidence as a whole, she Fournier had reason in detaining Jama, because with the information that was provided to him, there was a reasonable belief that he could have had a weapon.

As for the search, Graham said in this case a pat-down search isn't necessarily the first step in the investigation because the officer was given a specific area of search, the right rear pocket, and that was the one area he had searched.

"I find the search was a legal search in pursuant of the investigation detaining," Graham said.

Federal Crown prosecutor Anita Szabo asked for a fine in the range of $750 to $1,000, while Takada asked for a discharge.

Graham said crack cocaine was a serious drug and a discharge was not appropriate.

"It is damaging the whole fabric of our society," she said.

At the same point, Graham had sympathy for the fact that Jama had possession of the drugs for only a matter of minutes and then ruled for the lower end of the fine range.