Man may walk through constitutional breach

A police officer breached the constitutional rights of a man who was allegedly caught with crack cocaine and a loaded handgun when she did not allow him to contact a lawyer soon enough, a local judge ruled Tuesday.

A police officer breached the constitutional rights of a man who was allegedly caught with crack cocaine and a loaded handgun when she did not allow him to contact a lawyer soon enough, a local judge ruled Tuesday.

Red Deer Court of Queen’s Bench Justice Monica Bast decided that the rights of Samir Mohamed, 22, were violated when RCMP Const. Sabrina Caterini detained the man without immediately advising him of his right to call a lawyer.

Mohamed was stopped by Caterini on Feb. 11, 2009, after the officer noticed him making an illegal U-turn in Sylvan Lake.

When Mohamed lowered his window, Caterini noticed a “very strong skunky odour” that she said she recognized from previous investigations as the smell of fresh marijuana.

Caterini also noticed that Mohamed was acting unusual by not making eye contact, answering her questions without attempting other conversation, and sweating profusely.

She asked him to step out of the vehicle.

Bast concluded it was “reasonable” for Mohamed to conclude he was being detained at this point. “He was detained when he was asked to step out of the car,” said Bast, who added the Canadian Charter of Rights and Freedoms in the Constitution requires that a person who is detained by police be advised of the right to contact a lawyer.

This did not happen until much later, after Mohamed had allegedly handed over some marijuana in his possession to Caterini and the officer had searched his jacket and a tote bag on the passenger seat of the car, allegedly finding about $35,000 worth of crack cocaine and a loaded handgun.

Defence lawyer Shawn Beaver argued the marijuana evidence that led to the other searches would never have been handed over by Mohamed if he had been able to seek legal counsel when he was asked to step out of the vehicle.

Beaver contended that this evidence should, therefore, not be allowed to be entered into the trial, which will be presided over by judge alone.

But Crown prosecutor Dave Inglis said Caterini was “cordial and decent” and did not threaten or coerce Mohamed into handing over the marijuana.

Inglis stressed that telling someone of their right to legal counsel does not mean the police investigation stops until the lawyer appears. “She can complete the investigation . . . inevitably (Caterini) would have discovered the drugs in the coat and the drugs and the gun in the (tote) bag in the car.”

Bast is expected to make a decision today about which evidence to allow.

lmichelin@bprda.wpengine.com