B.C. Supreme Court in New Westminster. (Photo: Tom Zytaruk)

Judge finds search and arrests were unlawful in Surrey drug and gun case

Police were stopping young men in rental cars to “gather intel,” the court heard

A B.C. Supreme Court judge found police conducted an unlawful search and arrests after they pulled over a rental car in Whalley during what the court heard amounted to a fishing expedition to gather “intel.”

Justice Emily Burke delivered her reasons for judgment on April 20th in connection with a voir dire, which is essentially a mini trial within a trial heard with the aim of determining if certain evidence should be considered or tossed out.

The accused, Jonathan Joshua Huete and Michael William Ortiz, have both been charged with possessing cocaine and methamphetamine for the purpose of trafficking, possession of a firearm without licence or authorization, occupying a vehicle knowing a firearm was present, transporting a firearm, and possessing a loaded firearm without licence or authorization.

They were arrested on March 25, 2016, when Combined Forces Special Enforcement Unit Uniform Gang Enforcement Team (CFSEU) officers were patrolling in Whalley, near 96 Avenue and 132nd Street in Whalley, and stopped a rental car being driven by Huete, with Ortiz in the passenger front seat.

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Both were arrested for possession of marijuana based on the scent allegedly emanating from the car, which they deny. The court heard the police searched them and seized “a number of drug items” and also seized a prohibited firearm loaded with six cartridges of ammo while searching the vehicle, inside a pink cloth on the front passenger floor. The court heard a swab analysis of the trigger and trigger guard taken by the police matched that of Mr. Ortiz.

Lawyers for the accused men challenged the search, arguing their clients’ Charter rights that protect them against unreasonable search and seizure, arbitrary detainment, and their right to be promptly informed why police were detaining them, were denied.

The court heard that on March 25, 2016 Constables James Hudson and Shane Parsons, both members of the Combined Forces Special Enforcement Unit (CFSEU) were helping Surrey RCMP’s Gang Enforcement Team patrol the area of 96th Avenue and 132nd Street. “This corridor was considered the predominate area of drug trafficking and flight of vehicles from police in Surrey,” the judge noted in her reasons for decision.

Burke noted that at a briefing earlier that evening the officers were instructed to specifically look for rental vehicles to pull over, with police being of the view that rental vehicles were often used in drug trafficking. “As the licence plate was associated with the rental company and not a registered owner or driver, rentals were used to hide the fact the driver may have a warrant for arrest but the police may not be able to identify the driver,” Burke observed.

Rental cars had been seen fleeing shooting scenes in Surrey. On that particular evening, police were targeting young men in rentals. “The object was to detain them on the side of the road and if nothing turned up the driver would be released,” the judge noted. “The police would conduct a vehicle stop to identify the driver, ensure he had a valid driver’s licence, proper registration papers and a rental agreement of the person who rented it.”

The defence lawyers maintain the police arbitrarily pulled their clients over based solely on the fact they were in a rental car and that they were stopped not because of any traffic violation or other statutory violation but merely on the pretext of searching rental cars for drugs.

Burke concluded it was an “arbitrary detention and the rights of Mr. Ortiz and Mr. Huete pursuant to Section 9 of the Charter were infringed.”

“Essentially the police identified what they thought was a rental vehicle and detained it along with the occupants. The vehicle was detained simply by virtue of being a rental vehicle in this particular area,” she found. “There was no reason to suspect this particular rental vehicle and its occupants were connected to a particular crime.”

The judge noted that “ultimately, both constables agreed that the purpose of stopping the vehicle was to ‘gather intel.’”

Burke also noted in her reasons for judgment that the only marijuana found at the scene was in Huete’s pocket in a sealed plastic bag tied with two knots.

“This evidence leads me to conclude that there was no marijuana smell and the constables were seeking to gather intel from the passenger based on the direction received from the briefing,” she decided, adding police “neither had subjective nor objective grounds to arrest in this instance.”

Finding police had no reasonable grounds to detain Huete or Ortiz, the judge said this “tainted all of the officers’ subsequent actions. As the officers did not have reasonable grounds to detain Mr. Huete or Mr. Ortiz, they did not have reasonable grounds to do either a personal search or a reasonable search of the motor vehicle.”

Having determined these breaches, the judge said, it is necessary to determine pursuant to the Charter of Rights and Freedoms whether the evidence “ought to be excluded if it would bring the administration of justice into disrepute if it was admitted.

“By agreement of the parties, argument on the admission or exclusion of the evidence has been adjourned. The matter is presently set to proceed on July 23, 2018.”



tom.zytaruk@surreynowleader.com

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